THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Modern  French  Legal  Philosophy 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


INTRODUCTION  TO  THE  SCIENCE  OF  LAW.  By  Karl 
Gareis  of  the  University  of  Munich.  Translated  by  Albert 
KocouREK  of  Northwestern  University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  Fritz  Berolz- 
HEIMER  of  Berlin.     Translated  by  Rachel  S.  Jastrow. 

COMPARATIVE  LEGAL  PHILOSOPHY,  applied  to  Legal 
Institutions.  By  LuiGl  Miraglia  of  the  University  of 
Naples,     Translated  by  John  Lisle  of  t'le  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  Korkunov  of  the 
University  of  St.  Petersburg.  Translated  by  W.  G.  Hastings 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.  By  Rudolf  von  Ihering 
of  the  University  of  Berlin.  Translated  by  Isaac  Husik  of 
the  University  of  Pennsylvania. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A.  Fouillée, 
J.  Charmont,  L.  Duguit  and  R.  Demogue  of  the  Uni- 
versities of  Paris,  Montpellier,  Bordeaux  and  Lille.  Trans- 
lated by  Mrs.  F.  W.  Scott  and  Joseph  P.  Chamberlain. 

SCIENCE  OF  LEGAL  METHOD,  SELECT  ESSAYS.  By 
Various  Writers. 

THE  FORMAL  BASES  OF  LAW.  By  G.  Del  Vecchio  of  the 
University  of  Bologna.  Translated  by  John  Lisle  of  the 
Philadelphia  Bar. 

THE  PHILOSOPHY  OF  LAW.  By  Josef  Kohler  of  the  Uni- 
versity  of  Berlin.     Translated  by  Adalbert  Albrecht. 


MODERN  FRENCH  LEGAL 
PHILOSOPHY 

BY 

A.  FOUILLÉE,  J.  CHARMONT 
L.  DUGUIT  AND  R.  DEMOGUE 

TRANSLATED  BY 

MRS.  FRANKLIN  W.  SCOTT 

AND 

JOSEPH  P.  CHAMBERLAIN 

WITH  AN  EDITORIAL  PREFACE  BY 

ARTHUR  W.  SPENCER 

AND  WITH  INTRODUCTIONS  BY 

JOHN  B.  WIN  SLOW 
Chief  Justice  of  the  Supreme  Court  of  Wisconsin 

AND 

F.  P.  WALTON 

Lecturer  in  the  Khedivial  School  of  Law,  Cairo,  Egypt 
and  formerly  Dean  of  the  Faculty  of  Law,  McGill  University 

THE  MACMILLAN  COMPANY 
1921 

All  rights  reserved 


Copyright,  1916 
By  the  boston  BOOK  COMPANY 


K 

SO 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


Joseph  H.  Drake,  Professor  of  Law,  University  of  Michigan. 
Albert  Kocourek,  Professor  of  Law,  Northwestern  University. 
Ernest  G.  Lorenzen,  Professor  of  Law,  University  of  Minnesota. 
Floyd  R.  Mechem,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  Pound,  Professor  of  Law,  Harvard  University. 
Arthur  W.  Spencer,  Brookline,  Mass. 

John  H.  Wigmore,  Chairman,   Professor  of  Law,  Northwestern 
University, 


LIST  OF  TRANSLATORS 

Adalbert  Albrecht  (former  Associate  Editor,  Journal  of  Crim- 
inal Law  and  Criminology) . 
Ernest  Bruncken,  Washington,  D.  C. 
Joseph  P.  Chamberlain,  Columbia  University. 
William  G.  Hastings,  Professor  of  Law,  University  of  Nebraska. 
Robert  L.  Henry,  Jr.,  former  Professor  of  Law,  University  of  Iowa. 
Isaac  Husik,  University  of  Pennsylvania. 
Mrs.  Rachael  Szold  Jastrow,  Madison,  Wis. 
Albert  Kocourek  (of  the  Editorial  Committee) . 
John  Lisle,*  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 
Layton  B.  Register,  University  of  Pennsylvania  Law  School. 
Mrs.  Franklin  W.  Scott,  University  of  Illinois. 


"Deceased  June  20th,  1915. 


1714428 


GENERAL   INTRODUCTION  TO 
THE  SERIES 

By  the  Editorial  Committee 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers.  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was 
loath  to  give  forth  this  view,  because,  as  he  admitted, 
it  might  "sink  him  beneath  the  waters  of  laughter  and 
ridicule,"  so  to-day  among  us  it  would  doubtless  resound 
in  folly  if  we  sought  to  apply  it  again  in  our  own  field 
of  State  life,  and  to  assert  that  philosophers  must  be- 
come lawyers  or  lawyers  philosophers,  if  our  law  is 
ever  to  be  advanced  into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  DeTocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


vi  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is, 
after  all,  only  the  science  of  general  ideas  —  analyzing, 
restating,  and  reconstructing  concrete  experience  — 
we  may  well  trust  that  (if  ever  we  do  go  at  it  with  a  will) 
we  shall  discover  in  ourselves  a  taste  and  high  capacity 
for  it,  and  shall  direct  our  powers  as  fruitfully  upon  law 
as  we  have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  Tlie  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others. 
Our  historic  bond  with  English  law  alone,  and  our  con- 
sequent lack  of  recognition  of  the  universal  character 
of  law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law. 
Philosophy  of  law  has  been  to  us  almost  a  meaningless 
and  alien  phrase.  "All  philosophers  are  reducible  in 
the  end  to  two  classes  only:  utilitarians  and  f utilitari- 
ans," is  the  cynical  epigram  of  a  great  wit  of  modern 
fiction.^  And  no  doubt  the  philistines  of  our  profession 
would  echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine  —  a  phil- 
osophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day  — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

*M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  vii 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy-  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (_Kuhn  v.  Fair- 


viii  GENERAL  INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting:  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where.    The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final 
solution  of  any  philosophical  or  juristic  problems;  nor 
to  follow  any  preference  for  any  particular  theory  or 
school  of  thought.  Its  chief  purpose  has  been  to  present 
to  English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation; but  the  selection  has  not  been  centered  on  the 


GENERAL  INTRODUCTION  ix 

notion  of  giving  equal  recognition  to  all  countries. 
Primarily,  the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time.  Germany,  for  example,  is  represented 
in  modern  thought  by  a  preponderant  metaphysical 
influence.  Italy  is  primarily  positivist,  with  subordinate 
German  and  English  influences.  France  in  its  modern 
standpoint  is  largely  sociological,  while  making  an  effort 
to  assimilate  English  ideas  and  customs  in  its  theories 
of  legislation  and  the  administration  of  justice.  Spain, 
Austria,  Switzerland,  Hungary,  are  represented  in  the 
Introductions  and  the  shorter  essays;  but  no  country 
other  than  Germany,  Italy,  and  France  is  typical  of  any 
important  theory  requiring  additions  to  the  scope  of 
the  series. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 


X  GENERAL  INTRODUCTION 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the 
Gary  Library  of  Continental  Law  (in  Northwestern 
University).  In  the  researches  of  preparation  for  this 
Series,  those  materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 
a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar 
way  be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


CONTENTS 


Page 

1.  General  Introduction  to  the  Series v 

2.  Editorial  Preface  to  this  Volume,  by  Arthur  W.Spencer.  xxix 

3.  Introduction  by  John  B.  Winslow Iv 

4.  Introduction  by  F.  P.  Walton Ixi 

5.  Key  to  Titles  of  Periodicals Ixvii 

PART  I 

A  BRIEF  SURVEY  OF  PHILOSOPHY  OF  LAW  IN 
FRANCE 

(A)     General  Characteristics  of  French  Legal 
Thought  (Alfred  Fouillée) 

CHAPTER  I 

The  Psychology  of  Peoples  and  the  Philosophy  of  Law 

§  1.     General  Subdivisions  of  the  Subject    1 

§  2.     Comparison  of  the  Three  Leading  Doctrines 3 

CHAPTER  II 
The  French  Spirit  and  the  Idea  of  Law 

§  3.     National  Qualifications  for  Special  Service 7 

§  4.     The  French  Character   9 

§  5.     The  Traditional  Ideal  of  France 12 

§  6.     "Enthusiasm"  as  a  National  Trait 14 

§  7.     The  Rational  Goal  of  the  French  Will    16 

§  8.     Means  of  Action   18 

§  9.     Contagious  Influence  of  the  French  Spirit   21 

1 10.     A  New  Type  of  Proselytism    23 

§  11.     The  French  Will  in  Action    25 

§  12.     The  Invincible  Optimism  of  the  French  27 


xii  CONTENTS 

Page 

§  13.     French  Politics  are  not  Utilitarian 28 

§  14.     The  Genius  of  Our  Language    30 

§  15.     Fatalism  Not  Acceptable  to  the  French 30 

§  16.     Good  and  Bad  Effects  of  the  Doctrine  of  Progress  .  32 
§  17.     National  Traits    Revealed  by  the   Religion  of  the 

French   34 

§  18.     Liberty  the  Primary  Basis  of  Law 37 

§  19.     Liberty  and  Equality  are  Inseparable 37 

§  20.     Spirit  of  Equality  Peculiar  to  the  French 38 

§  21.     Manifestations  of  the  Spirit  of  Equality 40 

§  22.     Equality  Must  Stand  Second  to  Liberty    43 

§  23.     Possible  Misapplications  of  the  Idea  of  Equality    .  .  43 

§  24.     Defects  of  the  National  Character 43 

§  25.     Means  of  Remedying  Our  Defects 45 

CHAPTER  III 

Antecedents  of  the  Philosophy  of  Law  in  France 

§  26.     Three  Main  Influences 47 

§  27.     The  Stoic  Influence 47 

§  28.     The  Christian  Idea  of  Law   48 

§  29.     The  Beginning  of  Descartes's  Influence    50 

§  30.     Descartes,  Locke,  and  Rousseau 51 

§  31.     The  Principle  of  Unlimited  Perfectibility 52 

§  32.     A  New  Result  of  Freedom 53 

§  33.     The  Influence  of  Locke    54 

§  34.     Emphasis  on  Human  Liberty 55 

CHAPTER  IV 

The  Idea  of  Law  in  the  French  Philosophy  of  the-  1800s 

§  35.     Modern  Criticism  of  the  Idea  of  Law  56 

§  36.     The  Doctrine  of  Saint-Simon    56 

§  37.     Auguste  Comte,  Exponent  of  Positivism    57 

§  38.     The  Doctrine  of  Fourier 58 

§  39.     Philosophical  Ideas  of  Proudhon    58 

§  40.     The  Spiritualistic  School   60 

§  41.     Limitations  on  the  Doctrine  of  Moral  Freedom  and 

Equality 61 

§  42.     The  Need  of  a  Synthesis  of  Doctrines 62 


CONTENTS  xiii 

(B)    Recent  Phases  of  French  Legal  Philosophy 
(Joseph  Charmont) 

CHAPTER  V 
The  Sociological  or  Positivist  School 

Page 

§  43.     How  the  Sociological  School  was  Formed 65 

§  44.     Evolution  and  the  Social  Sciences   66 

§  45.     The  Relation  of  Law  to  Society  and  the  Individual  . .  68 

§  46.     A  New  Conception  of  Law  is  Needed    69 

§  47.     The  Danger  in  Deficient  Idealism    70 

§  48.     The  Uses  of  Idealism   72 

CHAPTER  VI 

Causes  and  Characteristics  of  a  Renascence  of  Legal 
Idealism 

§  49.     A  Plea  for  the  Return  to  Individualism   74 

§  50.     The  Need  of  Idealism 75 

§  51.     Widespread  Evidences  of  Idealism 76 

§  52.     The  Problem  of  the  Basis  of  Duty 78 

§  53.     Belief  in  an  Ideal  is  Irresistible 80 

§  54.     Our  Program  Outlined  81 

CHAPTER  VII 

Solidarism 

§  55.     Solidarism  Defined    82 

§  56.     Solidarity  Exemplified  in  Christian  Doctrine   82 

§  57.     The  Relation  of  Solidarism  to  Science    83 

§  58.     Examples  Found  in  the  Field  of  Economics   84 

§  59.     Solidarism  and  Ethics 84 

§  60.     A  Widespread  Demand  for  a  New  Term    85 

§  61.     Solidarity  Advocated  as  a  Link  between  Science  and 

Ethics 87 

§  62.     The  Position  Assailed 88 

§  63.     Concessions  by  the  Solidarists    89 

§  64.     Solidarism  is  of  Real,  though  Limited,  Ethical  Value .  90 

§  65.     A  Juridical  Basis  Claimed    91 

§  66.     The  Doctrine  of  Social  Quasi-Contract 92 

§  67.     General  Review  of  Solidarism 94 

§  68.     Solidarism  and  Socialism  95 

§  69.     The  Present  Status  of  Solidarism 96 


xiv  CONTENTS 

CHAPTER  VIII 
Pragmatism 

Page 

§  70.     Derivation  and  Explanation  99 

§71.     A  Middle  Ground  between  the  Ideal  and  the  Practical  100 

§  72.     Examples  of  Pragmatic  Method  100 

§  73.     The  Broad  Scope  of  Pragmatism   101 

§74.     Its  Relation  to  Various  Earlier  Doctrines 102 

§  75.     Pragmatism  and  Science    103 

§  76.     Blondel's  Theory 104 

§  77,     The  Defects  of  Pragmatism 104 


CHAPTER  IX 

Natural  Law  with  Variable  Content 

§  78.     Comparison  of  Old  and  New  Views 106 

§  79.     Attitude  of  the  Historical  School   106 

§80.     Essential   Limitations  of  the  Doctrine  of  Natural 

Law    107 

§  81.     The  Relativity  of  Natural  Law    108 

§  82.     A  New  Interpretation '    109 

§83.     Evolution  in  the  Law  of  Contract  110 


CHAPTER  X 

Free  Scientific  Research 

§84.     Traditional  Methods  of  Interpretation   112 

§  85.     Gény's  Project  Outlined 114 

§  86.     The  Interpreter's  Privilege    115 

§87.     Both  Pure  and  Practical  Reason  are  Requisite   ....  115 
§88.     Subjectivity  not  an  Essential  Characteristic  of  the 

Principles  of  Justice    117 

§  89.     The  Uses  of  Analogy    117 

§  90.     Gény's  Objective  Method   119 

§  91.     Limitations  upon  the  Interpreter 120 

§  92.     Positive  Principles  of  Free  Research   120 

§  93.     Gény's  Position  Coosidered 122 


CONTENTS  XV 

CHAPTER  XI 
Duguit's  Theory  of  Objective  Law 

Page 

§  94.     Outline  of  the  Doctrine   125 

§  95.     Duguit  and  the  Solidarists 126 

§  96.     Relations  to  Predecessors  and  Contemporaries   ....  127 

§  97.     Solidarism  Furnishes  but  a  Weak  Foundation 128 

§  98.     Objective  and  Subjective  Law    130 

§  99.     Duguit  an  Unconscious  Idealist    132 

CHAPTER  XII 
Conflicts  Between  Law  and  the  Individual  Conscience 

§  100.     Sources  of  the  Conflict 133 

§  101.     The  Conflict  Historically  Considered 134 

1  :    Its  Absence  from  the  Ancient  World 134 

2:    Its  Rise  with  Christianity   135 

3:   The  "Pactum  Subjectionis"  and  the  Right  of 

Revolt 135 

4:   The  Attitude  of  the  Church 135 

5:   Tyrannicide   137 

6:   The  Right  of  Resistance  in  the  French  Con- 
stitution      137 

7:   Conservative  Interpretations  in  our  Courts  ..  .  139 

§  102.     The  Problem  Considered  in  Itself    143 

1  :   At  First  it  Seems  Insoluble  143 

2:   The  Logic  of  Life  a  Harmonizing  Factor   ....  143 
3:   The  Duty  to  Promote  the  Interpénétration  of 

Two  Worlds 145 

§  103.     Conclusion   145 


xvi  CONTENTS 


PART  II 

SOME  IMPORTANT  POINTS  OF  VIEW  IN  CON- 
TEMPORARY FRENCH  LEGAL  PHILOSOPHY 

(A)     Synthesis  of  Idealism  and  Naturalism 
(Alfred  Fouillée) 

CHAPTER  I 

Criticism  of  the  Traditional  Idea  of  Law  Based  on  Free 

Will 

Page 

§  104.  Introduction:  The  Law  and  Liberty,  Theory  of  the 

Ideal  Right   149 

§  105.     Three  Phases  of  the  Problem  of  Freedom    151 

§  106.  The  Value  of  Freedom;  its  Relation  to  its  End.  .  .  .  151 

§  107.     The  Inmost  Nature  of  Freedom 152 

§  108.  Free  Will  and  Freedom  of  Indifference  Distinguished  153 

§109.     Does  Free  Will  Justify  "Inviolability"?   155 

§  110.     Free  Will  an  Inadequate  Basis  for  Law    156 

§  111.     Paradoxical  Conclusions    158 

§  112.     Further  Limitations  of  the  Doctrine   158 

§  113.     Scientific  Objections  to  Free  Will 159 

§  114.     The  Difficulties  Summarized 159 

§  115.  The  Error  of  Complete  Renunciation  of  Free  Will  .  .  .  161 

§  116.     Contradictory  Views  to  be  Reconciled    161 

§  117.     The  Subject  Further  Outlined    162 

CHAPTER  II 

The  True  Side  of  Naturalism  —  Critique  of  the  Concep- 
tion OF  Law  as  Something  in  the  Order  of  Nature 

§  118.     Spiritualism  an  Inconsistent  Doctrine 163 

§  119.     The  Basis  of  Natural  Law *^  163 

§  120.     The  I  mmeasurable  Quality  of  Natural  Rights 164 

§  121.     Natural  Rights  are  not  Real,  but  Ideal    165 

§  122.  Natural  Rights  Traced  Back  to  Moral  Freedom  .  .  .  166 

§  123.  Is  Naturalism  Adequate  for  our  Philosophy  of  Law?  .  168 


CONTENTS  xvii 

CHAPTER  III 

The  True  Side  of  Idealism  —  Law  Conceived  as  Belong- 
ing TO  THE  Ideal  Order 

Page 

§  124.     Essential  Relations  of  Naturalism  and  Idealism  .  . .  169 

§  125.     The  Dependence  of  the  Practical  on  the  Ideah 170 

§  126.     External  Freedom 171 

§  127.     Internal  Freedom    173 

§  128.     The  Will  as  the  Source  of  Moral  Good 174 

§  129.     Moral  Freedom  Identified  as  the  Will 174 

§  130.     The  Object  of  True  Liberty  is  not  Evil,  but  Good  ...  176 

§131.     Interrelation  of  Rights  and  Freedom 177 

§  132,     An  Unsolved  Problem    178 

CHAPTER  IV 
Scientific  Reconciliation  of  Naturalism  and  Idealism 

BY  MEANS  of  THE  FoRCE-IdEA  OF  RiGHT 

§  133.     The  Force-Idea  Defined 179 

§  134.     The  Self- Realization  of  Desire    180 

§  135.     The  Basis  of  Right  in  a  Universal  End 181 

§  136.     Limitations  of  Spiritualism  and  Naturalism 183 

§  137.     Ground  Gained  from  the  Naturalists 185 

§  138.     The  Basis  of  the  Theory  Laid  Down 185 

§  139.     Three  Phases  in  the  Evolution  of  Freedom    186 

§  140.     Infinity  of  the  Ideal  of  Right   189 

§  141.     Respect  for  the  Ideal  of  Right  is  Due  to  its  Pro- 

gressivity    190 

§  142.     Man's  Idea  of  the  Right  a  Basis  for  Practical  Rights  190 

CHAPTER  V 

Metaphysical  Hypotheses  Concerning  the  Ultimate  Basis 

OF  Law 

§  143.     The  Sphere  of  Metaphysics 192 

§  144.     The  Problem  of  Individuation    193 

§  145.     The  Realm  of  the  Unknown  and  the  Unknowable  .  194 

§  146.     Characteristics  of  Consciousness    195 

§  147.     A  Metaphysical  Foundation  for  Right    196 

§  148.     The  Metaphysical  Foundation  not  Exclusive    198 


xviii  CONTENTS 

Page 

§  149.     Further  Consideration  of  Human  Consciousness  . . .  199 

§  150.     Relation  between  Self-Respect  and  Rights 201 

§  151.     Science  Ends  Where  Justice  and  Right  Begin 201 

§  152.     Objective  Value  of  the  Ideas  of  Freedom  and  Right .  204 

CHAPTER  VI 

The  Agreement  of  the  Theory  of  Ideal  Right  with  the 
Force  and  Interest  Theories 

§  153.     Determining  Wherein  Theories  Agree 207 

§  154.     Force  Must  Accompany  Right   207 

§  155.     But  Right  Must  Not  be  Identified  with  Force    ,209 

§  156.     Superiority  of  Internal  to  External  Force 210 

§  157.     Reconciliation  of  Freedom  and  Higher  Interest  ....  212 

§  158.     The  Power  of  a  Love  for  the  Ideal 212 

§  159.     The  Cult  of  Freedom    213 

§  160.     Harmony  between  Ideal  Right  and  Evolution 213 

§  161.     A  Scientific  Synthesis  of  Ideas   215 

CHAPTER  VII 

The   Directive  Ideas  and  Their  Struggle  for  Exist- 
ence—  THE  Future  of  the  Idea  of  Right 

§  162.     Errors  of  the  French  Democratic  Philosophy 216 

§  163.     Present  Need  of  Discrimination    217 

§  164.     Harmonization  of  Power,  Interest,  and  Right 217 

§  165.     The  Metaphysical  Transition  from  the  Ego  to  the 

Non-Ego 219 

§166.     This  Transition  is  the  Foundation  of  Justice    222 

§  167.     Summary  of  the  Theory  of  Ideal  Right 223 

§  168.     The  Ideal  Has  a  Potential  Reality 226 

§  169.     Freedom  the  Basis  of  French  Social  Philosophy 226 

§  170.     The  Evolution  of  Ideas    228 

§  171.     Present  Tendencies  Reveal  the  Future   228 

§172.  Human  Evolution  Works  toward  a  Definite  End  .  .  230 
§  173.     Historical   Expression  of  the  Dominant  Idea  of  the 

French 230 

§  174.     Democracy  the  Practical  End  of  French  Thought  ...  231 

§  175.     A  Program  for  France 233 


CONTENTS  xix 

(B)     Theory  of  Objective  Law  Anterior  to  the 
State     (Léon  Duguit) 

CHAPTER  VIII 
Prevailing  Misconceptions  of  the  State  and  of  Law 

Page 

§  176.     Object  of  This  Book 237 

§  177.     The  Alleged  Personality  of  the  State 238 

1  :   Survey  of  Modern  Theories 238 

2:   These  Doctrinesof  State  Personality  areFictions  241 
3  :    Personality  Not  Necessary  to  Support  Public 

Law 243 

§  178.     The  State  Limited  by  Law    244 

1  :   Law  is  Based  on  the  Coincidence  of  Social  and 

Individual  Purposes    244 

2:   Law  Exists  Without,  is  Above,  and  Limits  the 

Sovereign 246 

3:   Law  Not  Based  on  the  Natural  Right  of  the 

Individual 248 

4:  The  Declaration  of  Rights  of  1789 249 

§  179.     The  General  Notion  of  the  Rule  of  Law 251 

1:  Law  is  Obligatory  Because  it  is  a  Fact 251 

2:  The  Rule  of  Law  Not  a  Law  of  Causality,  but 

Like  Natural  Laws     252 

3:  The  Juridical  Act  and  the  Legal  Situation  .  . .  253 

§  180.     Definition  of  the  State   254 

§  181.     Importance  of  Keeping  Close  to  Realities 255 

CHAPTER  IX 

Social  Solidarity 

§  182.     Definition  of  Solidarity    258 

§  183.     The  Individual    260 

1:  The  Individual  Mind  the  Base  of  All  Human 

Phenomena 260 

2:  Though  its   Content   May   Vary,    the   Mind 

Remains  the  Same    261 

3:  Will  and  Action 262 

4:  Individuals  the  Only  Realities  in  Social  Life  .  264 
5:   Individual  Consciousness  Grows  More  Social, 

but  in  Essence  Remains  Individual 264 


XX  CONTENTS 

Page 

§  184.     Solidarity  by  Similitude 265 

1:   Life  in  Community  Lengthens  Itself  and  Les- 
sens Suffering 265 

2;   Historically  Men  Have  Always  Lived  in  Com- 
munities      266 

3:  Sociology  Must  Show  how   this  Fact  Affects 

Men 267 

4:   The  Will  to  Live  the  First  Bond  of  Society  ...  268 
5:   This  Bond  Peculiarly  Unites  Man  to  a  Certain 

Group    269 

6:   But  Individuality  is  Not  Affected    271 

7:   This  is  Not  Social  Contract     272 

8:   Origin  of  Solidarity  by  Similitude    273 

§  185.     Solidarity  Through  Division  of  Labor 274 

1:    Men  Have  Always  Been  Unequal    274 

2:    Inequality   Increases    with    Increasing    Civili- 
zation    276 

3:   But  the   Idea   of    Equality    is  a   Product   of 

Civilization 278 

4:  This  Form  of  Solidarity  Stronger  than  Solid- 
arity by  Similitude 280 

5:  This  Solidarity  Due  to  the  Desire  to  Lessen 

Suffering   282 

6:  Other  Influences  on  Division  of  Labor    283 

CHAPTER  X 

The  Rule  of  Law 

§  186.     Summary  of  Preceding  Analysis 286 

§  187.     The  Problem  of  a  Rule  of  Conduct   287 

§188.     Consciousness  of  Social     Solidarity     Implies    Con- 
sciousness of  a  Rule  of  Conduct  289 

1  :  The  Rule  Must  be  a  Law  of  Purpose 289 

2:   The  First  Rule  of  Conduct    •     289 

3:   A  Rule  Practically  Universal 290 

4:   The  Second  Rule  of  Conduct    292 

5:   The  Third  Rule  of  Conduct    293 

6:   Why    Legal     Prescriptions    Have   Grown    in 

Number 295 

7:   Conclusion  —  The  Complete  Rule  of  Conduct  .  296 


CONTENTS  xxi 

Page 
S  189.     General  Characteristics  of  the  Rule  of  Conduct  ....         296 

1  :  A  Rule  Based  on  the  Fact  of  Society    296 

2:   Because  Individual,  the  Rule  is  Diversified  in 

its  Application 300 

3:  The  Rule  of  Conduct  Applies  to  Strong  and 

Weak  Alike 301 

4:  The  Rule  is  Permanent  in  Content,  Changing 

in  Form 303 

5:  The   Rule  of  Conduct    Identified  with  Solid- 
arity           304 

§190.     The   Rule  of  Conduct   is  the    Rule  of  Law;   it  is 

Objective  Law   305 

1:   The  Distinction  between  Law  and  Morals  .  .  .         305 
2:   Solidarity  Neither  Egoistic  Nor  Altruistic   .  .  .         306 
3:  The    Rule   is   One  of    Law,    Rather  than  of 
Morals,  Because  it  Has  its  Basis  in  Social 
Rather  than  Intrinsic  Values  of  Conduct  .  .         307 
{ 191.     The  Doctrine  of  Jhering  and  Jellinek  and  its  Refu- 
tation           308 

1:   Unsound  German  Theories  of  Law 308 

2:   Jhering's  Doctrine  Summarized    310 

3:   How  Jhering  Subjects  the  State  to  its  Own  Law        312 
4:   Jellinek  Says  that  the  State  Limits  its  Own 

Action  by  the  Law  that  it  Creates 313 

5:   Laband  Supports  the  Same  Doctrine 315 

6:   The  Error  of  These   Theories  in  Laying  Too 

Great  Stress  on  Organized  Sanction 316 

7:  The  Rule  Has  the  Sanction  of  Psychological 

Coercion    318 

8:  The  Rule  of  Law  is  Antecedent  to  the  Idea  of 

the  State 319 

9:   Many  Rules  Adopted  by  the  State  Have  Only 

a  Psychological  Sanction    321 

10.    Finally  Our  Theory  Permits  Limitation  of  the 

Powers  of  the  State 323 

11:   The    German    Doctrine    Which    Denies   that 

Constitutions  are  Laws 325 

12:   Jellinek's    Views    in    his  "Allgemeine    Staats- 

lehre"    326 

13:   Points  of  Jellinek's  Doctrine  Here  Accepted  .  .         327 


xxii  CONTENTS 

Page 
14:  Jellinek,  However,  Regards  the  Law  as  Willed 

by  the  State 329 

15:  The  Error  of  Treating  the  Law  as  Created 

Exclusively  by  the  State 330  / 

16:  Jellinek's  Explanation   of   Self-Limitation  by 

Historical  Evolution 331 

17:   The  Dilemma  of  Jellinek's  Theory 332 

§  192.     The  Doctrine  of  Gierke  and  Preuss   332 

1  :   The  Theory  of  Gierke 332 

2:  The  Need  for  Exterior  Limitation  of  Men's 

Wills,  i.e.  Law   333 

3:   Law  and  the  State  Proceed  Together    334 

4  :  The  State  is  a  Legal  Person    335 

5:   Individualistic  Doctrinarism  in  Gierke 337 

6:  The  Primary  Conception  of  the  Rule  of  Law  .  338 

CHAPTER  XI 

The  State  and  Law,  as  Concrete  Facts  rather  than 
Abstract  Conceptions 

§193.     The  Basis  of  Modern  Theories:   The  State-Person   .  339 

§  194.     The  Self-Limitation  of  the  State-Person 340 

§  195.     These  Theories  are  Empty  or  Dangerous 340 

§  196.     The  True  Theory,  Based  on  Consciousness  and  Will  341 

§  197.     The  State   342 

§  198.     Positive  Statutory  Law   342 

§  199.     Summary  343 

(C)     Analysis  of  Fundamental  Notions     (René 
Detnogue) 

Author's  Preface  to  Translation 347 

Preface  to  the  Original  Work 349 

CHAPTER  XII 

The  Notion  of  Law 

§200.     The  Notion  of  Law  Bound  up  with  the  Idea  of  a 

Continuous  Protection  of  Varying  Interests 352 

§201.     Realistically  Defined,  Law  is  that  Which  is  Imposed 

Without  Recourse  by  an  Organized  Force   355 


CONTENTS  xxiii 

Page 

§  202.     Coercion  Need  Not  be  Exercised  in  Fact  357 

§  203.     Law  Viewed  as  a  Durable  Force 359 

§  204.     Law  and  Not-Law 360 

§  205.     Force  and  Continuity  the  Chief  Marks  of  Law  ....  362 

§  206.     The  Relations  Between  Law  and  Morality 364 

§207.     Ideal  Law    (Executory    Morality)    Has  a  Practical 

Use  for  Society     368 

§  208.     The  Method  of  Establishing  This  Ideal  Law 369 

§  209.     The  School  of  Natural  Law 370 

§  210.     Other  Doctrines  Lack  Precision    371 

§  2n.     The  Historical  School   372 

§  212.     The  Theory  of  a  Law  of  Nature  with  Variable  Con- 
tent     373 

§  213.     Some  Form  of  Ideal  Law  is  Essential  to  Legal  Theory  374 
§214.     The   Legal   System    Must    Adapt    Itself  to  Actual 

Conditions,  yet  Must  Also  Seek  an  Ideal    375 

§  215.     The  Theory  of  Lévy-Bruhl    376 

§  216.     Morality  Variable,  like  Ideal  Law    378 

§217.     Theories  Specially    Concerned  with  the  Contingent 

Element  are  Incomplete   379 

§  218.     Theory  of  Technic  of  Roguin  and  Picard  380 

§219.     How  Shall  the    Permanent  Goal  of  Humanity  be 

Defined?    381 

§  220.     There  is  an  Objective  Meaning  of  Life,  but  it  can  be 

Conceived  only  Subjectively 387 

§22L     The     Reconciliation     of     Subjective    Conceptions, 

Psychologically  Considered   389 

§222.     The  Role  of   Compromise:  Tarde's  Theory  of  Op- 
position    391 

§223.     The  Relativity  of  a  Social  Ideal  Promoted  by  the 
Instinct  of  Imitation  is  our  Refuge  from  Moral 

Nihilism    395 

§224.     The  Quest  of  Universality;    a  Criticism  of  Tarde  ..  .  396 

§  225.     Ideal  Law  has  Ideas  of  General  Validity    398 

§226.     The  Never-Ending   Struggle  of  Motives  Forces  us 

to  Deal  Empirically  with  Ideal  Law   400 

§  227.     Our  Postulate  of  an  Ideal  Law  for  Each  State  of 

Society 403 

§  228.     Can  Actual  Law  Satisfy  the  Mind? 404 

§  229.     The  Tentative  Basis  of  Ideal  Law  406 

§  230.     The  Limitations  of  Technic  as  a  Recipe  for  Law  .  . .  407 


xxiv  CONTENTS 

Page 

§  231.     The  Principle  ol  Mass  Action 410 

§  232.     Justice  and  Social  Evolution v  411 

§233.     "Principles  of  Law"  Sanctioned  by  their  Dynamic 

Value 413 

§  234.     The  Opposition  of  Desire  and  Belief 414 

§235.     Practical  Realization  of  Ideal  Law;    Coercion 415 

§  236.     The  Complexity  of  the  Subject  About  to  be  Exam- 
ined thus  Apparent 417 

CHAPTER  XIII 

Security 

§  237.     Importance  of  the  Idea  of  Security  418 

§  238.     Other  Interpretations  of  Security 421 

§239.     The  Influence  of  the  Idea  Shown  in  the  Provisions 

of  Private  Law 423 

§240.     How  Private  Law  Secures  Rights  from  Attack  by 

Third  Parties  425 

§241.     Burden  of  Proof 426 

§242.     Underlying  Most  of  These  Conceptions  of  Private 
Law  is  the  Aim  of  Facilitating  Transactions  — 

Dynamic  Security 427 

§243.     Static  Security  the  Counterpart  of  the  Foregoing  ..  .  428 

§  244.     The  Problem  Arising  from  the  Opposition    429 

§  245.     A  Reconciliation  Possible? 430 

§  246.     Means  of  Mitigating  the  Conflict 431 

1  :    Insurance    431 

2:   Publicity 433 

§  247.     Other  Means  of  Settling  the  Conflict 433 

1:   In  Case  of  Bad  Faith    433 

2:  Where  the  Parties  are  in  Good  Faith;  Liability 

for  Fault 434 

§248.     Security  Viewed  in  a  Different  Light:  Asa  Senti- 
ment      436 

§  249.     The  Sentiment  of  False  Security    436 

§250.     The  Modern  Social  Conception  of  the  Position  to 

be  Secured  to  the  Propertyless 438 

§  251.     Psychological  Considerations    439 

1  :   Dynamic  Security 439 

2:   Static  Security 442 

§  252.     Combining  the  Two  Forms 443 

§  253.     Perfect  Security  Unattainable  and  Undesirable    ....  444 


CONTENTS  XXV 

CHAPTER  XIV 

Evolution  and  Security 

Page 
§254.     How  Social  Change  Affects  Rules  of  Law  and  Juri- 
dical Acts  446 

5255.     The    Problem    of   the   Antinomy    of   Security  and 

Social  Change    449 

1  :  The  Symmetry  of  Formalities 449 

2:   A  Factor  that  Cannot  be  Slighted,  the  Interest 

of  Third  Parties 452 

3:  The  Quest  of  a  Middle  Term:  Non- Retroactiv- 
ity, Non-Perpetuity,  Indemnification    454 

§256.     The  Principle  of  Non- Retroactivity    456 

1  :   With  Reference  to  Statutes 456 

2:   With  Respect  to  Private  Juridical  Acts 459 

§257.     The  Principle  of  Non- Perpetuity    462 

§  258.     Statute  Law,  Case  Law,  and  Customary  Law 464 

§  259.     The  Principle  of  Indemnification  466 

§  260.     Other  Remedies  for  the  Conflict  between  Security  and 

Change    468 

§261.  The  Equilibrium  of  Security  and  Change;  the 
Sacrifice  of  One  to  the  Other  Must  Not  Overleap 

Certain  Bounds  469 

CHAPTER  XV 
Economy  of  Time  and  Activity 

§  262.     The  Birth  of  a  New  Formalism    471 

§263.     Types  of  the  Artificial  Simplification  of  Complex 

Situations   473 

§264.  The  Inconveniences  and  Hardships  of  Over- Sim- 
plification             475 

§265.     Means    of    Reconciliation    between    the    Clashing 

Interests  of  Speed  and  Security    476 

§  266.     Harmonizing  Rival  Interests  by  Reciprocal  Conces- 

àons 478 

CHAPTER  XVI 

Justice 

§267.     Justice     as    Equality    or    Proportionality;  Tanon 

Shows  the  Variability  of  the  Concept   480 


xxvi  CONTENTS 

Page 
§  268.     The  Conception  of  Justice  as  a  Proportion  between 

Material  Elements    483 

§269.     A    Variation    of    the    Foregoing    Principle,    Paying 

More  Attention  to  Causality 486 

§  270.     Another  Conception  Recognizes  the  Element  of  Will: 

Responsibility-Justice   488 

§271.     Justice  as   Taking   Account   of   Ordinary   Needs  of 

Individuals   491 

§272.  Justice  as  the  Satisfaction  of  Primary  Human  Needs  492 
§  273.     None  of  the  Foregoing  Conceptions  Can  be  Complete, 

Justice  Being  a  Formal  Idea 493 

§  274.     The  Value  of  Justice  Even  So  Understood   497 

CHAPTER  XVII 
Equality 

§  275.     Equality  as  Resting  on  Postulates,  Not  on  Demon- 
stration    500 

§276.     Equality  an  Acceptable  Compromise  for  Opposing 

Claims 502 

§  277.     Relation  of  Equality  and  Solidarity 502 

§  278.     Its  Relation  with  Security 503 

§  279.     Its  Relation  with  Liberty    504 

§  280.     Equality  and  Differentiation 505 

CHAPTER  XVIII 
Liberty 

§  281.     Superficial  and  Profound  Reasons  for  its  Importance  507 

§  282.     Various  Conceptions  of  Liberty    508 

1:    Liberty  as  a  Consequence  of  Limitations  on 

the  Power  of  Law   508 

2:   Liberty  as  a  Doctrine  of  Despair 509 

3:   Liberty  as  the  Interest  of  the  Individual  ....  509 

4:   Liberty  as  a  Social  Ideal    510 

§283.     The  Influence  of  Conceptions  of  Liberty  in  Private 

Law 511 

§  284.     Derivative  Conceptions  in  the  Law  of  Obligations  .  512 

1  :   The  Autonomy  of  the  Will    512 

2:   Respect  for  the  Sphere  of  Activity  of  Others  .  514 


CONTENTS  xxvii 

Page 

(285.     Liberty  as  a  Bulwark  for  Static  Security 517 

[286.     Liberty,  with  Respect  to  the  Duration  of  Juridical 

Situations 519 

i  287.     Liberty  and  Responsibility  521 


CHAPTER  XIX 

SOLIDARISM   AND  THE  APPORTIONMENT  OF  LOSSES 

(  288.     The  Theoretical  Bases  of  Solidarism  525 

[289.     Division  of  Losses  in   Private   Law,  Arising  from 

the  Notion  of  Solidarity 527 

\  290.     Additional  Applications  in  Private  Law 529 

(291.     Division  of   Losses  a   Convenient   Compromise  for 

Various  Issues   532 

i  292.     The  Defects  of  the  Principle 533 

(293.     The  Minimum-of- Existence  Version  of  Solidarism  .  .  535 


CHAPTER  XX 

The  Notion  of  General  Interest 

§  294.     Extent  of  the  General  Interest 538 

§  295.     Rarity  of  Ideas  Common  to  All    539 

§296.     Interests  of    Groups;    Their   Solidarity    and  Their 

Opposition    541 

§297.     The  General  Interest  a  Zone  of  Uncertainty 541 

§298.     The  Difficulty  of  Measuring  the  Generality  of  an 

Interest 543 

§  299.     The  Illusoriness  of  the  Notion  of  General  Interest  .  . .  544 


CHAPTER  XXI 

Future  Interest 

i  800.     Importance  of  Future  Interests    546 

[301.     Two  Forms  of  Protection 547 

(302.     Reconciling  Future  Interest  and  Change    548 

i  303.     The  Law  can  Only  Aspire  to  a  Compromise  System  .  550 


xxviii  CONTENTS 

CHAPTER  XXII 
Moral  Interest 

Page 
§  304.     The  Obscure  Boundary  between  Material  and  Moral 

Interest 553 

§  305.     Interests  Which  Have  Intangible  Value  556 

§306.     The    Difficulties    Which  the    Legal    Protection  of 

Intangible  Interests  Raises   557 

§307.     How  the   Extension  of   Reparation  Affects  Other 

Fundamental  Principles 559 

§308.     How   Opposite   Obstacles   may   be  Avoided   by  a 

Middle  Course 561 

CHAPTER  XXIII 

Conclusion 

§309.     The  Tendency  to  Over-simplification:   Fictions  of 

Unity  and  Opposition 564 

§  310.     Impossibility  of  a  Stable  Equilibrium 566 

§311.     Compromise,  Not  Logical  Synthesis,  the  Goal  of 

Juridical  Effort    569 

§  312.     Importance  of  Legal  Technic   571 


EDITORIAL  PREFACE  TO  THIS  VOLUME 
By  Arthur  W.  Spencer 


France  is  doubtless,  next  to  England,  the  country  to 
which  the  people  of  the  United  States  feel  themselves 
most  closely  united  by  the  ties  of  closely  related  political 
institutions,  traditional  beliefs,  and  inherited  standards 
of  taste  and  feeling.  Apart  from  this  affinity  we  should 
naturally  look  to  a  gifted  and  highly  cultivated  people 
like  the  French  for  light  in  nearly  every  department  of 
life  ;  and  it  would  seem  that  in  view  of  this  close  relation- 
ship we  should  be  particularly  receptive  to  all  the 
influences  of  contemporary  French  thought,  and  nowhere 
more  than  in  the  treatment  of  the  problems  of  law  and 
the  State.  Here  there  is  a  marked  propinquity  of  the 
institutions  of  the  two  countries,  here  French  thought 
has  lately  exhibited  a  striking  fertility,  and  here  the 
opportunity  to  become  better  acquainted  with  views 
we  are  likely  to  find  in  large  part  acceptable  is  to  be 
seized  most  gladly. 

The  powerful  democratic  movement  of  the  nineteenth 
century  seems  to  have  culminated  during  the  past  twenty- 
five  or  thirty  years  in  a  series  of  most  important  social 
developments.  What  French  writers  are  in  the  habit 
of  describing  as  the  "interventionist"  idea  has  made 
startling  headway,  as  may  be  observed  in  the  rapid 
growth  of  social  legislation.  The  old  individualism 
feels  itself  assailed,  and  must  look  for  weapons  of  defense; 
the  expansive  movement  in  the  labor  groups  must  also 


XXX  EDITORIAL  PREFACE 

seek  arguments  by  which  to  vindicate  the  very  large 
claims  that  it  makes.  All  political  beliefs  are  now  on 
trial,  challenged  to  prove  their  right  to  exist,  and  there 
are  indications  of  a  widespread  effort  to  restate  the 
cardinal  principles  of  social  philosophy  in  a  form  which 
will  supply  this  need  of  criteria  that  can  arbitrate  the 
dispute  between  society  and  the  individual.  To  per- 
fect the  Art  of  Legislation,  and  to  hearten  the  practical 
jurist  with  a  sense  of  the  solidity  of  the  structure  upon 
which  he  labors,  there  is  need  of  something  approaching 
a  complete  revision  of  the  scale  of  values  in  the  moral 
and  juridical  realms  —  the  values  which  are  otherwise 
termed  rights  and  obligations;  and  such  a  transvalua- 
tion  of  course  involves  a  doctrine  of  rational  law,  of  an 
ideal  law  which  will  itself  furnish  the  criterion  for  the 
soundness  of  positive  law,  bearing  the  relation  to  it  of 
the  absolute  to  the  relative.  Such  a  rational  law,  in 
some  respect  similar  to  the  "law  of  nature"  of  the 
eighteenth  century,  may  in  fact  resemble  it;  but  only 
superficially,  for  it  need  not  be  colored  by  the  humani- 
tarian and  Romantic  prejudices  of  the  eighteenth  cen- 
tury radicals,  but  may  revert  to  that  respect  for  an 
established  social  order,  that  sense  of  the  continuity  of 
ideal  and  positive  law,  which  it  showed  in  the  doctrines  of 
Leibnitz  and  Aquinas.  Toward  the  conception  of  such 
an  ideal  law,  implied  in  reality  rather  than  in  any  meta- 
physical intuition,  the  modem  French  mind  (retaining 
its  revulsion  against  metaphysics,  conceived  when  Com- 
tianism  was  triumphant,  but  not  shrinking  from  abstract 
analysis)  appears  to  be  tending.  Such  a  tendency  is 
often  taken  for  one  of  "idealism,"  but  the  word  is  used 
in  so  many  senses  that  one  should  guard  carefully  against 
exaggerating  the  contrast  of  methods  between  scientific 
realism  and  a  widening  rationalism  careful  to  avoid 
transcendental  or  mystical  interpretations  of  the  world 


EDITORIAL  PREFACE  xxxi 

of  conduct,  which  is  neither  opposed  to  nor  identical 
with  the  world  of  reality. 

These  remarks  are  designed  to  put  the  reader  on  his 
guard  against  supposing  that  the  movement  represented 
by  those  whom  Duguit  calls  "the  younger  French  school" 
has  made  an  abrupt  exit  from  the  house  of  its  fathers, 
or  has  roughly  slammed  the  door  in  the  face  of  Positivism. 
They  are  inserted  as  an  intimation  that  too  close  a 
resemblance  between  the  so-called  idealism  of  contem- 
porary France  and  the  idealism  of  contemporary  Ger- 
many (at  least  as  the  latter  is  frequently  conceived) 
is  not  to  be  looked  for.  On  the  contrary,  what  is  to  be 
expected  is  a  close  relationship  between  Positivism  and 
this  new  French  school,  which  makes  the  transition 
from  one  to  the  other  gradual  rather  than  sudden,  and 
permits  the  reader  whose  philosophical  attitude  has  been 
formed  largely  by  English  empiricism  to  get  his  bearings 
in  a  new  region  with  fair  ease.  Indeed,  these  more 
recent  doctrines,  —  who  knows?  —  may  prove  highly 
congenial  to  the  American  mind,  and  may  even  supply 
the  foundation  for  a  new,  constructive  attitude  in  this 
country  toward  the  somewhat  misunderstood  problem 
of  "natural  law." 

The  distinctive  character  of  French  legal  philosophy 
as  a  peculiar  product  of  the  French  people,  differentiated 
from  the  thought  of  other  nations,  brings  the  theoretical 
movement  of  the  past  forty  years  into  sharp  relief  against 
the  background  of  Continental  speculation,  and  offers 
on  that  account  an  interesting  focus  for  the  American 
student's  attention.  The  intellectual  movement  pre- 
sented in  this  volume  is  distinctively  French,  not  so  much 
as  an  outgrowth  of  the  French  temperament,  in  accord- 
ance with  a  current  personification  of  supposedly  distinct 
national  traits,  as  it  is  an  indigenous  product  of  French 
tradition,  evolved  only  to  a  minor  and  unimportant 


xxxii  EDITORIAL  PREFACE 

extent  in  response  to  foreign  influences.  Only  one  of 
the  four  authors  exhibits  any  marked  impress  from  an 
outside  source,  and  in  this  case  (that  of  Fouillée,  per- 
haps the  most  typically  French  of  all  in  temperament) 
the  action  of  English  empiricism  is  neutralized  by  the 
original  force  of  his  genuis.  Charmont's  attention  is 
preoccupied  with  the  writers  of  his  own  land,  and 
Duguit  takes  much  pains  to  controvert  the  teachings 
of  the  German  school,  whose  doctrine  of  the  law  as 
sanctioned  by  State  coercion  he  rejects.  Demogue's 
numerous  references  to  Jhering  occupy  only  a  subordi- 
nate relation  to  his  lavish  citations  of  contemporary 
French  theoricians.  Of  course  Kant  has  long  been  a 
basic  element  in  French  philosophical  instruction,  but 
his  somewhat  inane  formality  has  merely  piloted  the 
voyager  past  certain  initial  difiiculties  and  left  him  to 
choose  his  subsequent  course.  The  influence  of  Hegel 
in  France  has  not  been  strongly  marked.  The  reaction 
to  later  idealistic  systems,  those  of  Schelling  and  Hart- 
mann and  the  rest,  seems  to  have  been  almost  negligible. 
Despite  the  pioneering  of  Renouvier  in  Neocriticism, 
Neo- Kantianism  in  France,  at  all  events  in  jurisprudence, 
is  a  highly  uncertain  quantity.  Durkheim  has  been 
reproached  for  a  fancied  indebtedness  to  German  specula- 
tion, but  such  a  charge  if  given  too  sweeping  a  form  is 
manifestly  unfair.  We  are  not  now  considering  the 
"Spiritualists"  of  the  early  nineteenth  century  and 
the  influence  perhaps  exerted  at  one  time  by  Fichte,  to 
which  we  shall  come  later.  For  a  considerable  period, 
at  least,  philosophical  development  in  France,  like  the 
literary  and  artistic  development,  affords  many  evidences 
of  the  self-sufficiency  of  French  culture. 

Since  the  beginning  of  the  Third  Republic,  when  the 
last  barriers  in  the  path  of  Positivism  were  removed 
and  the  movement  inaugurated  by  Comte  and  modified 


EDITORIAL  PREFACE  xxxiii 

by  his  successors  attained  a  predominant  influence, 
there  have  been  signs  of  a  continuous  progress  in  a 
certain  direction.  This  movement  might  be  roughly 
described  as  one  from  Positivism  to  RationaHsm.  There 
is  danger,  of  course,  in  the  use  of  terms  of  wide  and 
uncertain  meaning,  especially  with  reference  to  such  a 
complex  of  tendencies  and  counter-tendencies  as  the 
many-sided  intellectual  life  of  the  France  of  recent  years. 
There  is  always  a  risk  in  applying  a  common  name  to 
groupings  of  individuals  who  show  an  endless  range 
of  divergence  and  interplay,  giving  rise  to  an  aggregate 
that  defies  logical  dissection  and  arrangement,  despite 
an  assumed  essential  similarity.  This  infinite  com- 
plexity of  French  thought  has  been  marked  since  1890, 
so  marked  that  critics  have  often  felt  the  necessity 
of  being  chary  of  generalization.  Varying  subjective 
criteria  may  also  be  a  factor  in  the  problem;  some 
readers  of  this  book  are  likely  to  share  Seillière's  estimate 
of  Fouillée's  supposed  rationalism,^  though  he  may  seem 
to  us  to  reflect  a  transitional  phase.  In  assuming  that 
there  has  been  a  movement  tending  toward  a  certain 
culmination,  of  which  movement  the  latest  stage  may 
be  represented  by  Demogue,  we  have  no  desire  to  foster 
prejudice.  Duguit's  vigorous  logic  compels  admiration, 
and  Charmont's  critical  discernment  disarms  attack  on 
his  judgments.  Let  the  word  Rationalism  be  given 
a  wide  connotation,  marking  a  general  tendency  in  which 
all  these  four  authors  may  perhaps  share,  rather  than 
overdrawn  contrasts  between  doctrines  that  should 
actually  be  grouped  fairly  close  together. 

Nor  is  the  whole  of  the  recent  movement  in  legal 
theory  contained  in  these  writers;   the  works  chosen  for 

1  For  a  highly  sympathetic  account  of  Fouillée's  theory  of  force-ideas. 
see  the  final  essay  in  "Introduction  à  la  Philosophie  de  l'Impérialisme" 
by  Ernest  Seillière  (Paris,  Mean,  1911),  307ff. 


xxxiv  EDITORIAL  PREFACE 

translation  compose  a  set  of  illustrative  readings  which 
ought  naturally  to  stimulate  wider  study  of  a  subject  too 
broad  to  be  completely  set  forth  by  four  representatives. 
And  the  interest  of  these  four  writers  arises  not  only 
from  their  own  views,  but  also  from  their  abundant 
allusions  to  the  theories  of  contemporaries.  While  the 
direct  exposition  presents  important  types  of  speculation, 
the  indirect  mirrors  the  wide  range  and  variety  of  con- 
temporary production  in  a  manner  that  could  hardly  have 
been  surpassed  in  a  different  compilation  of  extracts.  It  is 
thus  that  the  reader  is  led  to  appreciate  the  importance 
not  alone  of  these  four  writers,  but  of  the  many  others, — 
Tanon,  Hauriou,  Saleilles,  De  Tourtoulon,  Picard, 
Roguin,  Beudant,  Gény,  and  the  rest,  who  must  also  be 
studied  before  a  comprehensive  estimate  of  the  signifi- 
cance of  recent  legal  thought  in  France  can  be  reached. 

The  European  war  is  certain  to  have  profound  after- 
effects in  every  country,  and  no  attempt  to  anticipate 
the  cultural  transformations  that  will  be  witnessed  in 
the  next  decade  can  have  value  at  this  time.  The 
prophecies  which  we  hear  from  time  to  time  are  commonly 
marked  by  but  a  limited  comprehension  of  so  intricate 
a  complex  of  phenomena.  At  the  same  time  intellectual 
activities  now  suspended  are  likely  to  be  resumed  by  the 
warring  nations  at  the  point  at  which  they  were  discon- 
tinued, and  for  reasons  which  cannot  here  be  detailed, 
j  uristic  thought  in  France  seems  far  more  likely  to  undergo 
continuous  development  in  an  idealistic  direction  than  to 
succumb  to  a  Positivistic  reaction.  These  considerations 
sustain  the  confident  belief  that  the  contemporaneous 
quality  of  the  present  volume  may  be  retained  for  some 
time  to  come. 

For  the  book  presents  the  latest  tendencies  in  the  legal 
thought  of  France  before  the  war.  It  may  perhaps  be 
no  exaggeration  to  say  that  three  of  the  authors  have 


EDITORIAL  PREFACE  xxxv 

produced  their  writings  chiefly  during  the  past  five  years, 
and  that  ten  years  ago  they  were  almost  unknown  even 
to  their  own  countrymen.  The  fourth,  who  belongs  to 
an  earlier  generation,  sustained  his  vigor  of  literary 
production  till  only  a  short  time  before  his  death  in  1912, 
and  his  doctrine  of  "force-ideas"  has  exercised  an  impor- 
tant influence  on  the  thought  of  recent  years  as  well  as 
on  that  of  an  earlier  period.  Fouillée's  long  and  fruitful 
career  as  one  of  the  representative  philosophers  of  modem 
France  results  in  a  great  abundance  of  materials  for 
an  extended  bibliography,  which  does  not  need  to  be 
included  in  a  volume  concerned  only  with  juridical  mat- 
ters. No  such  wealth  of  material  is  available  in  the  case 
of  the  other  three  writers.  Even  the  most  fragmentary 
biographical  information  concerning  them  is  difficult  of 
access.  Their  fame  has  so  recently  been  acquired  that 
this  very  quality  of  freshness  will  perhaps  atone  for  a 
paucity  of  information  about  their  personality. 

The  translators  of  this  volume  were  Mrs.  Franklin  W, 
Scott  for  the  Charmont  and  Fouillée  selections  and  Joseph 
P.  Chamberlain,  Esq.,  for  the  extracts  from  Duguit  and 
Demogue.  It  may  be  remarked  that  of  the  four  authors 
whose  writings  are  here  reproduced  M.  Demogue  was  the 
only  one  whose  text  ofl'ered  any  particular  difficulty. 
In  this  case  the  work  of  the  translator  was  somewhat 
increased  by  the  concentration  of  the  author's  style  and 
by  his  numerous  references  to  technical  principles  em- 
bedded in  the  French  Civil  Code.  The  editor  has  taken 
special  pains  to  check  up  the  English  text  of  the  "Fun- 
damental Notions, "and  has  carefully  compared  the  entire 
translations  with  the  originals.  He  therefore  does  not 
seek  to  evade  his  share  of  the  responsibility  for  inaccur- 
acies or  inelegancies  that  may  be  discovered  in  any  por- 
tion of  this  volume. 


xxxvi  EDITORIAL  PREFACE 

Alfred  Fouillée,  member  of  the  French  Institute, 
was  born  at  La  Pouëze,  Maine-et-Loire,  October  18,  1838. 
He  completed  his  studies  at  the  lycée  at  Laval,  and  for 
some  time  taught  in  Paris  as  an  unattached  professor. 
After  teaching  at  Louhans,  Dole,  Auxerre,  and  Car- 
cassonne, he  obtained  honors  in  1864  in  the  revived 
philosophical  "concours  d'agrégation"  and  was  succes- 
sively appointed  professor  in  the  lycées  of  Douai  and  of 
Montpellier  and  in  the  Faculty  of  Letters  of  the  Univer- 
sity of  Bordeaux.  Called  to  Paris  as  master  of  con- 
ferences at  the  Ecole  Normale  Supérieure,  he  was  forced 
to  retire  by  failing  health  and  threatened  eyesight  in 
1879,  and  thenceforth  devoted  the  greater  part  of  his  life 
to  literary  production.     He  died  at  Lyons  July  16, 1912. 

The  germ  of  Fouillée's  philosophical  system  is  found 
in  his  doctorate  thesis  of  1872  on  "Liberty  and  Deter- 
minism," read  at  the  Sorbonne,  a  work  which  passed 
into  several  editions.  This  exhibited  that  attempt  to 
reconcile  naturalistic  determinism  and  psychological 
freedom  which  was  to  be  the  dominant  purpose  of  his 
later  writings.  His  next  work  of  importance  was  his 
"General  History  of  Philosophy,"  which  was  likewise 
re-issued  in  many  editions,  and  became  a  classic  text- 
book of  philosophical  instruction  in  France.  In  1878 
he  published  the  volume  on  "The  Modern  Idea  of  Law," 
the  larger  part  of  which  is  here  translated.  This  was, 
as  the  writer  avowed  in  his  preface,  an  effort  to  prolong 
the  ethical  discussion  which  had  found  place  in  his  doc- 
torate thesis  into  the  field  of  social  and  political  life, 
treating  of  "the  same  question  transferred  from  the  moral 
to  the  social  and  poHtical  order";  an  incidental  purpose 
was  to  vindicate  the  ideal  of  France,  as  he  understood  it, 
in  the  face  of  the  pretensions  of  other  nations.^ 

2  "The  ideal  of  Germany  was  primarily  —  at  least  originally  —  reli- 
gious and  metaphysical;    that  of  England  was  primarily  political  and 


EDITORIAL  PREFACE  xxxvii 

This  work  has  gone  into  several  editions.  Thence- 
forth Fouillée  produced  a  large  number  of  books  in  which 
his  theory  of  force-ideas  was  developed,  and  contem- 
porary movements  in  morals,  and  in  general  philosophy 
treated  particularly  from  the  moral  point  of  view,  were 
examined.  In  his  later  life  he  devoted  the  greater  part 
of  his  attention  to  political  and  social  questions  of  the 
day.  He  urged  the  retention  of  the  classics  in  the  edu- 
cational curriculum,  and  advocated  reforms  in  the  French 
parliamentary  system  designed  to  achieve  greater  democ- 
racy. Like  Duguit  he  favored  proportional  representa- 
tion and  the  "scrutin  de  liste." 

Besides  his  own  books  Fouillée  also  edited  issues  of 
the  "Republic"  of  Cicero,  the  "Memorabilia"  of  Xen- 
ophon,  the  "Manual"  of  Epictetus,  the  "Theodicy"  of 
Leibnitz,  and  the  "Logic  of  Port-Royal"  of  Arnauld, 
as  well  as  a  collection  of  "Extracts  from  the  Great 
Philosophers"  (1877).  He  also  edited  the  posthumous 
works  of  his  stepson  Guyau  (1889  and  1895),  a  writer 
by  whom  he  is  recognized  to  have  been  influenced.' 

Fouillée's  position  strongly  suggests  that  Fichteanism 
to  which  Brunetière  referred,  with  an  evident  lack  of 
sympathy,  when  he  remarked:  "Dare  we  say  that  it 
is  not  with  Kantianism,  properly  speaking,  but  with 
Fichteanism  that  contemporary  French  philosophy  is 
and  continues  to  be  impregnated?"  ^  Fouillée  exhibits  a 
type  of  introspective  humanitarianism  which  might 
seem  the  product  of  a  fusion  of  the  Fichtean  and  Rous- 
seauist  traditions.  But  the  period  of  the  seventies, 
when  the  foundations  of  Fouillée's  system  were  laid, 
was  one  of  Positivistic  influences  which  an  idealistic 
philosopher   could    harly  resist.     These  influences  infil- 

economic;  the  ideal  of  France  is  primarily  social  and  humanitarian." 
Part  i,  chapter  ii,  p.  14  post. 

'  For  a  list  of  works,  see  end  of  this  preface. 

*  "Sur  les  Chemins  de  la  Croyance"  (Paris  1907),  9. 


xxxviii  EDITORIAL  PREFACE 

t rated  into  his  system,  which  represents  an  attempt  to 
estabUsh  a  modus  vivendi  between  Positivism  and 
idealism. 

Consequently  Fouillée  represents  a  contracting,  reced- 
ing form  of  this  Fichteanism.  He  rejected  the  old 
"Spiritualism"  as  appealing  to  "metaphysical  entities  .  .  . 
as  sterile  with  regard  to  the  question  of  legal  right  as  to 
that  of  moral  freedom,"^  and  as  favorable  to  aristocratic 
tendencies.^  He  reacted  against  the  Kantian  influence 
by  misinterpreting  and  rejecting  the  "transcendental- 
ism" of  Kant,''  and  by  objecting  to  what  he  calls  his 
"mechanism";  but  the  theory  of  immanentism  that  he 
substitutes,  constituting  a  bond  between  Fouillée  and 
Proudhon,^  shows  his  response  to  the  Positivistic  influence 
to  have  been  qualified,^  and  explains  that  element  in  his 
teachings  which  to  some  has  suggested  Platonic  influence. 

When  Fouillée  writes  of  "The  Modem  Idea  of  Law," 
it  is  primarily  to  express  the  attitude  of  a  humanitarian 
moralist.  "Droit"  in  French  meaning  either  law  or 
right,  legal  right  is  readily  treated  purely  from  the 
moralist's  point  of  view.  When  we  take  into  account 
Fouillée's  egalitarianism,  his  devotion  to  the  glittering 
formulae  of  the  French  Revolution,  his  enthusiastic 
championship  of  somewhat  hazy  general  maxims  of 
social  life,  and  his  ardent  adulation  of  the  emancipatory 
vocation  of  the  French  people,  we  must  recognize  a  strong 
inclination  toward  a  certain  kind  of  Romanticism. 
This  Romanticism  is  of  the  altruistic  form,  it  is  humani- 
tarianism  in  morals  and  democratism  in  politics.  It  is 
not  a  Romanticism  because  of  its  attitude  toward  reason 

«  Preface  to  "L'Idée  Moderne  du  Droit,"  ii. 
»  Part  ii,  chapter  i,  post. 
'  Preface  to  "L'Idée  Moderne."  iv. 
8  §§39,  148  post. 

>  For  Fouillée's  contact  -with  Fichte  see  "L'Idée  Moderne,"  30,  163  (not 
here  translated). 


EDITORIAL  PREFACE  xxx. 

itself,  but  because  of  its  application  of  reason;  in  the 
abstract,  apart  from  its  concrete  applications,  Fouillée's 
psychological  Rationalism  has  much  to  commend  it. 
But  the  type  of  Rationalism  that  permits  such  mis- 
applications is  scarcely  to  be  called  critical  :  it  is  not  so 
keen  as  that  of  Demogue  in  detecting  the  flaws  in  the 
doctrinaire  foundations  ;  in  its  naive  simplicity  it  admits 
a  great  amount  of  unconscious  fiction. 

What  is  most  to  be  admired  in  Fouillée  is  his  clear 
perception  of  the  fact  that  the  wonderful  expansion  of 
empirical  science,  in  the  nineteenth  century,  was  not 
an  attack  on  the  foundations  of  an  analytical  science  of 
concepts,  but  that  the  two  should  collaborate  in  the 
formation  of  a  comprehensive  philosophical  doctrine. 
This  purpose  of  harmonizing  realism  and  idealism  was 
a  lofty  one,  but  it  was  conceived  perhaps  a  little  too  soon, 
when  the  psychological  and  gnosiological  technic  now 
beginning  to  be  available  was  undeveloped.  It  is  hard  to 
see  how  any  real  monism  can  be  achieved  without  carrying 
the  psycho-physical  parallelism  to  its  remotest  applica- 
tions, and  one  does  not  discover  recognition  of  this  par- 
allelism in  Fouillée.  The  result  of  such  a  structural  want 
is  to  leave  the  idealistic  side  of  Fouillée,  which  is  the  dom- 
inant side,  suspended  as  it  were  in  mid-air,  as  an  autono- 
mous system  of  grandiose  moral  intuitions.  Fouillée  thus 
follows  the  example  of  many  eclectics  before  him,  in 
contriving  what  is  not  a  real  synthesis,  but  only  a  mélange 
of  seemingly  opposed  philosophical  tendencies.  The 
natural  dualistic  consequences  of  this  attitude  are  to 
be  looked  for  in  Fouillée's  treatment  of  rational  law, 
the  gulf  between  which  and  positive  law  is  falsely  magni- 
fied, recalling  the  tendency  of  the  eighteenth  century. 

Fouillée's  Romanticism  makes  him  a  doctrinaire  when 
he  approaches  the  subject  of  freedom.  He  takes  un- 
necessary pains  to  vindicate  the  necessity  of  an  expand- 


xl  EDITORIAL  PREFACE 

ing  freedom  for  the  moral  life,  and  his  conception  of  the 
manner  in  which  humanity  advances  from  automatism 
to  freedom  is  highly  artificial.'"  The  problem  of  freedom, 
in  the  form  in  which  he  states  it,  lacks  vital  importance 
for  ethical  theory.  Fouillée's  insistence  on  the  funda- 
mental character  of  this  problem  betrays  the  ascendancy 
of  the  Rousseauist  doctrine  that  "the  free  will  is  the 
essence  of  man."  '^  It  shows  (as  Tarde  says)  that 
Fouillée,  like  Kant,  is  anxious  to  preserve  Duty  at  any 
price.'^ 

The  doctrine  which  he  called  the  "evolutionism  of 
the  force-ideas"  carries  with  it  the  implication  that  the 
ideas  which  present  the  chief  goals  of  human  effort  derive 
their  force,  not  from  the  particular  mental  state  of  the 
willing  agent  at  the  moment  he  wills,  but  from  a  rational 
content  of  the  particular  volitional  ideas  which  is  assumed 
to  have  a  general  validity  independent  of  the  willing 
agent.  Here,  again,  the  fault  is  more  with  Fouillée's 
application  of  his  theory  than  with  the  theory  itself. 
We  might  postulate  this  universal  validity  of  certain 
teleological  conceptions  if  we  could  generalize  those 
conceptions  from  the  content  of  the  particular  volitional 
ideas.  But  a  careful  survey  of  the  volitional  experience 
of  the  race,  and  a  cautious  attempt  to  formulate  generali- 
zations that  will  accurately  cover  all  past  and  present 
subjective  phenomena,  will  yield  nothing  approaching 
in  clearness  of  definition  the  ideas  which  Fouillée  presents 
to  us  as  the  "idées  directrices."  The  emphasis  on  those 
inane  abstractions,  liberty  and  equality,  is  characteristic 

^"Brunetière  takes  issue  with  Fouillée's  three  degrees  of  solidarity, 
predetermined  and  automatic,  consensual,  and  free,  failing  to  see  how 
an  automatic  act  can  be  transformed  into  a  free  one.  "L'Idée  de  Soli- 
darité," in  "Discours  de  Combat,"  2d  series  (Paris  1903),  67-8. 

"  §  30  post.     (Cf.  p.  27  of  French  edition). 

"  See  Tarde's  remarks  on  Fouillée's  views  with  regard  to  determinism 
and  "force-ideas,"  in  his  "Penal  Philosophy,"  vol.  5  of  Modern  Criminal 
Science  Series,  13. 


EDITORIAL  PREFACE 

of  Fouillée,  if  not  of  the  French  mind  in  general.  Such 
general  ideas,  to  acquire  a  vital  meaning,  need  to  be 
supplemented  by  concrete  conditions.  The  practical 
problems  of  everyday  morals  and  justice  are  more  of  ways 
and  means  for  the  attainment  of  obvious  ends  than  they 
are  of  the  formulation  of  ends.  The  final  concepts  of 
happiness,  welfare,  or  order,  explain  themselves  solely 
by  the  things  which  must  be  done  for  their  realization. 
The  doctrinaire  theory  of  force-ideas  is  thus  tinctured 
with  mysticism  and  has  a  defect  which  betrays  one  of 
the  dogmatic  consequences  of  dualism. 

Joseph  Charmont  has  been  Professor  of  Civil  Law  in 
the  Faculty  of  Law  of  the  University  of  Montpellier 
for  upwards  of  twenty  years.  He  appears  to  have  pub- 
lished few  books  if  any  before  1907.  Since  then  his 
writings  have  been  largely  concerned  with  French  private 
law,  but  he  has  also  written  two  books  of  a  less  special 
character  treating  of  law  in  its  larger  social  aspect.  Of 
one  of  these  the  last  half  is  translated  in  this  volume, 
particularly  on  account  of  its  clear  résumé  of  recent 
movements  in  French  legal  thought,  and  to  bring  into 
prominence  that  idea  of  an  idealistic  renascence  which 
is  the  keynote  of  the  author's  discussion.^' 

It  is  significant  that  Charmont  does  not  give  his  own 
unqualified  support  to  most  of  the  recent  doctrines  which 
he  reviews,  whether  Solidarism,  or  Pragmatism,  or  "free 
scientific  research,"  or  the  theory  of  Duguit. 

He  finds  that  Solidarism  is  entitled  to  be  called  a  form 
of  idealism,  because  the  later  Solidarists  have  recognized 
that  solidarity  as  an  external  fact  cannot  supply  any 
ethical  criterion;  solidarity  must  itself  conform  to  the 
idea  of  justice.  Solidarity,  itself,  cannot  supply  a  prin- 
ciple of  morals.     Solidarism  may,  however,  enlarge  our 

"  For  a  list  of  his  works  see  the  end  of  this  preface. 


xlii  EDITORIAL  PREFACE 

conception  of  individual  right,  and  may  mediate  between 
the  extremes  of  individuaUsm  and  sociaHsm.  Only  time 
can  tell,  says  Charmont,  whether  Solidarism,  whose  force 
of  expansion  he  considers  to  have  diminished,  will  be 
able  to  serve  as  an  ideal  for  a  democracy  bent  on  sound 
reforms.  He  says  that  its  teachings  are  somewhat  vague, 
but  for  that  very  reason  more  elastic  and  more  capable 
of  enlisting  the  support  of  different  kinds  of  people. 

He  objects  to  Pragmatism  as  confusing  the  useful  and 
the  true.  But  "we  are  all  more  or  less  Pragmatists,  in 
the  sense  that  we  seek  to  formulate  an  opinion  compatible 
with  the  end  and  conditions  of  action."  Charmont, 
however,  shows  that  he  is  to  be  classed  with  the  rational- 
ists; he  finds  the  exaggeration  of  the  Pragmatist  doc- 
trine to  consist  in  its  rejection  of  the  control  of  reason. 

He  objects  to  Gény's  doctrine  of  free  judicial  inquiry 
as  militating  against  the  principle  that  the  statute  is  to 
be  treated  as  above  everything  else  the  expression  of  a 
declared  will;  he  also  says  that  it  would  tend  to  the 
production  of  a  formless  legal  system  which  would  be 
deprived  of  unity  and  coherence  by  the  opportunity 
given  the  individual  judge  for  arbitrary  solutions  of  his 
own.  But  he  seems  to  approve  of  Gény's  break  with 
the  historical  school  in  treating  justice  as  a  product  of 
the  reason. 

He  criticises  Duguit  for  rejecting  the  notion  of  indi- 
vidual or  subjective  rights,  and  for  various  artificial 
dogmas  into  which  his  Positivism  leads  him.  He  finds, 
however,  that  Duguit  is  an  unconscious  idealist,  because 
he  really  believes  in  a  natural  justice  but  poorly  dis- 
guised by  his  concept  of  solidarity. 

These  criticisms  show  an  eminently  sane  point  of  view, 
free  from  excesses  both  of  dogmatic  Positivism  and  of 
romantic  idealism;  roughly,  it  is  the  rationalistic  con- 
ception of  natural  right  rather  than  the  notion  commonly 


EDITORIAL  PREFACE  xliii 

ascribed  to  Rousseau  with  which  Charmont  is  preoccu- 
pied. Neither  in  the  chapter  on  "The  Conflicts  between 
Law  and  the  Individual  Conscience"  nor  elsewhere  in  the 
book,  however,  does  Charmont  give  definite  form  to  a 
rationalistic  doctrine. 

Obviously  the  recent  developments  of  which  Charmont 
writes  illustrate  the  tendency  to  a  renascence  of  legal 
idealism  instead  of  supplying  actual  examples  of  such 
a  thing.  Leaving  Stammler's  natural  law  with  variable 
content  out  of  account,  which  is  hardly  an  indigenous 
product  of  France,  not  one  of  these  doctrines  is  to  be 
regarded  a  distinct  form  of  juridical  idealism.  The  only 
one  which  does  not  make  compromising  concessions  to 
Positivism,  Gény's  theory  of  free  judicial  interpretation, 
is  chiefly  concerned  with  judicial  technic  and  gives  great 
emphasis  to  the  contingent  element  in  the  formulation 
of  law.  What  chiefly  interests  Charmont  is  a  tendency 
that  he  discovers  in  legal  thought,  which  leads  him  to 
anticipate  a  time  when  the  two  opposite  notions  of  in- 
dividual and  community  rights  will  be  integrated  with 
each  other  in  an  orderly  and  harmonious  system  of 
rational  justice.  Whether  such  a  synthesis  is  to  be  con- 
tingent, the  fruit  of  cumulative  experience,  or  analytical, 
the  work  of  the  philosopher,  is  something  on  which  he 
expresses  no  opinion. 

It  is  with  a  mistaken  notion  that  one  looks  to  that 
"renascence  of  idealism"  (often  pointed  out  by  Brune- 
tière  and  many  other  writers  as  showing  itself  in  the 
early  nineties,  not  in  legal  theory  alone  but  elsewhere) 
for  a  sharp  differentiation  of  new  tendencies  radically  in 
opposition  to  the  thereto  prevailing  Positivistic  doc- 
trines. That  term  is  rather  to  be  understood  as  denoting 
a  complex  of  reactions,  within  as  well  as  outside  Positiv- 
ism, which  not  even  at  the  present  time,  in  their  latest 
phases,  are  easily  to  be  made  to  converge  into  a  single, 


xliv  EDITORIAL  PREFACE 

clearly  outlined  type  that  answers  to  the  description 
of  an  ideahstic  doctrine.  The  past  two  decades  have 
been  a  period  marked  in  the  main  by  rebellion  against 
the  excesses  which  were  found  to  have  been  brought 
about  by  Positivism  in  science,  by  externalism  in  morals 
and  history,  and  by  naturalism  in  art.  To  this  reaction 
Charmont  himself  clearly  belongs. 

LÉON  DuGUlT,  Professor  of  Constitutional  Law  at 
the  University  of  Bordeaux,  has  like  Charmont  held 
a  chair  in  the  law  faculty  of  his  university  for  upwards 
of  twenty  years.  His  first  important  work  which  we 
have  been  able  to  discover  was  "The  Constitutions  and 
Principal  Political  Statutes  of  France"  written  in  col- 
laboration with  Henry  Monnier  in  1898.  His  writings 
have  dealt  almost  wholly  with  the  subject  of  public  law, 
treated  largely,  however,  from  a  philosophical  point  of 
view,  even  in  such  of  his  works  as  aim  merely  to  expound 
the  special  topics  of  French  constitutional  law.  Duguit 
seems  to  have  preceded  these  technical  manuals,  however, 
with  studies  in  which  the  theoretical  foundations  of 
his  later  practical  expositions  were  firmly  laid.  He  pub- 
lished in  1901  and  1903  his  two  volumes  of  "Studies  of 
Public  Law,"  from  the  first  of  which  extracts  are  made 
for  translation  in  this  volume.  This  first  volume  con- 
tains a  comprehensive  exposition  of  his  leading  prin- 
ciples, and  is  the  best  book  to  read  to  understand  his 
general  doctrine  of  the  nature  of  law  and  its  relation  to 
the  State.  These  views  were  further  elaborated  in  the 
course  of  lectures  delivered  at  the  École  des  Hautes 
Études  Sociales  and  published  under  the  title,  "Le  Droit 
Social,  le  Droit  Individuel,  et  la  Transformation  de 
l'État."  His  treatise  on  constitutional  law,  issued 
in  1907  and  much  enlarged  in  1911,  reiterates  the  theory 
of  the  State  earlier  set  forth.     In  1912  Duguit  turned 


EDITORIAL  PREFACE  xlv 

his  attention  to  a  fuller  examination  of  private  law  than 
he  appears  to  have  made  before  that  time,  but  in  1913 
he  returned  to  his  major  subject  with  a  luminous  study 
of  recent  developments  in  French  public  law,  "Les  Trans- 
formations du  Droit  Public."  Emphasis  may  well  be 
laid  on  the  fact  that  it  is  not  only  as  a  theoretical  jurist 
that  Duguit  commands  attention;  his  treatise  on  French 
constitutional  law  is  classed  with  Esmein's  as  one  of  the 
two  best  recent  manuals  of  this  subject. 

Duguit  rejects  Durkheim's  notion  of  a  social  mind. 
Everything  must  be  expressed  in  terms  of  individual 
mind.  Social  solidarity  exists;  the  society  and  the 
individual  are  correlative,  increasing  socialization  mean- 
ing increasing  individualization.  There  are  no  a  priori 
individual  rights,  there  are  only  objective  (positive) 
rights.  There  is  an  objective  rule  of  law  or  right  which 
is  contained  in  the  concept  of  solidarity  itself;  for  this 
concept  offers  a  rule  of  finality  —  conduct  must  be  ade- 
quate to  the  end  of  social  solidarity.  This  rule  of  law 
is  imposed  upon  men  not  by  any  inherent  moral  validity, 
that  being  a  metaphysical  conception,  but  by  virtue  of 
the  positive  fact  of  social  solidarity.  Some  men,  more 
enlightened  than  others,  recognize  the  rule  of  law  when 
it  is  not  recognized  so  clearly  by  the  great  mass  of  their 
fellows,  whence  results  the  distinction  between  morality 
and  law.  The  State  is  not  a  subject  of  legal  rights,  as 
the  conception  that  a  subject  must  exist  as  the  possessor 
of  rights  is  metaphysical.  The  State  in  this  sense  is 
only  a  fiction  or  hypothesis,  for  which  realistic  legal 
science  has  no  use.  Actually  the  State  is  nothing  but 
any  human  society  in  which  there  is  political  differen- 
tiation—  that  is,  a  differentiation  between  those  who 
govern  and  those  who  are  governed. 

Duguit,  though  he  rejects  the  chief  positions  of  the 
important  modern  sociological  school  of  which  Durk- 


xlvî  EDITORIAL  PREFACE 

heim  is  the  head,  is  nevertheless  perceptibly  influenced 
by  that  school  in  his  treatment  of  law  and  morality  as 
social  facts  imposed  upon  the  individual  externally. 
He  adopts  the  same  "imposition"  idea  which  Durkheim 
and  Lévy-Bruhl  find  serviceable  as  a  makeshift  for 
internal  obligation.  Thus  there  is  something  similar  in 
his  manner  of  proceeding  to  bridge  the  abyss  dividing 
the  world  of  fact  and  the  world  of  value  —  between  the 
"enunciative"  and  the  "normative." 

Ultra-Positivism  gives  rise  to  metaphysical  dog- 
matism in  Durkheim  ^*  and  Lévy-Bruhl,  and  in  spite 
of  Duguit's  rejection  of  their  type  of  sociological  doctrine, 
he  shows  a  similar  tendency  to  mistake  fictions  and 
hypotheses  for  objective  facts.  Thus  the  solidarity 
which  Duguit  and  Durkheim  both  postulate  to  be  a 
fundamental  fact  is  far  from  being  complete  in  actual 
social  life,  which  shows  a  great  deal  of  misadaptation 
and  want  of  harmony.  Actual  human  society  certainly 
presents  no  perfect  organic  harmony  and  unity  of  struc- 
ture which  can  serve  as  a  foundation  on  which  to  erect 
a  positive  social  morality.  Demogue's  treatment  of 
solidarity  is  much  more  satisfactory,  because  it  is  more 
realistic.  Of  positive  social  morality  unity  and  distinct- 
ness of  form  cannot  be  predicated  ;  it  is  rather  an  amor- 
phous mass  of  contradictory  and  infinitely  divergent 
natural  "rules  of  law."  Duguit's  one  "rule  of  law"  is 
accordingly  a  fiction  ;  his  doctrine  founders  on  the  rock 
of  Scholasticism  it  seeks  to  avoid.  It  revives  the  natural 
law  dogma  in  a  new  form,  highly  repugnant  to  the  rational 
law  of  a  pure  ethical  science  untainted  by  Positivistic 
aberrations. 

"  "The  sociology  of  M.  Durkheim  ceases  to  be  a  sociology,  and  re- 
sembles a  sort  of  blind  algebra,  in  that,  as  a  consequence  of  Positivism, 
M.  Durkheim  has  emptied  social  symbols  of  all  intellectual  content." 
Tarde,  RMM  Jan.  1895,  quoted  by  Leguay,  "Universitaires  d'Aujour- 
d'hui"  (Paris,  Grasset.  1912),  299. 


EDITORIAL  PREFACE  xlvii 

These  defects,  however,  are  very  far  from  wrecking 
Duguit's  theories  of  law  and  the  State.  Ingenuously 
blind  to  the  latent  anti-Positivistic  trend  of  his  con- 
clusions, he  nevertheless  furnishes  a  most  interesting 
example  of  the  ingenious  and  resourceful  application 
of  an  inadequate  and  outworn  method.  A  large  part 
of  the  analytical  structure  he  erects  is  of  firm,  durable 
construction,  and  actually  he  is  less  of  an  iconoclast 
than  he  seems  to  be  at  first  glance.  To  a  large  part  of 
his  teachings,  developed  as  they  are  with  much  logical 
force,  the  objection  is  not  so  much  that  they  are  false  as 
that  they  are  not  the  whole  truth.  The  doctrine  that 
the  personality  of  the  State  is  only  fictitious,  for  example, 
needs  to  be  supplemented  by  a  doctrine  which  recognizes 
the  utility  of  such  a  fiction  —  if  it  is  to  be  no  more  than 
that  —  in  public  law.  The  notion  of  a  positive  "rule 
of  law,"  which  is  only  a  latent  law  at  the  root  of  an  exist- 
ing social  order,  needs  to  be  supplemented  by  a  more 
profound  analysis  of  that  other  law  which  is  consciously 
set  in  motion  by  a  society  organized  with  the  very  purpose 
of  maintaining  its  supremacy.  As  soon  as  the  reader 
places  himself  in  a  sympathetic  position  which  permits 
him  to  recognize  the  relative  validity  of  Duguit's  teach- 
ings, as  useful  studies  of  certain  aspects  of  juridical 
phenomena,  he  will  feel  that  the  work  of  this  writer  has 
in  many  respects  constituted  no  slight  contribution  to 
a  rational  theory  of  law.  His  attitude,  moreover,  is 
one  of  wholesome  detachment  from  the  political  con- 
troversies of  the  day;  he  is  a  Solidarist  untainted  by 
Rousseauism  and  indifferent  to  the  practical  expedients 
his  Solidarism  offers  the  politician,  and  his  rejection  of  the 
principles  of  the  French  Revolution  is  unmistakable. 

René  Demogue's  earliest  work,  the  cornerstone  of 
his  reputation,  seems  to  have  been  his  "Civil  Repara- 


xlviii  EDITORIAL  PREFACE 

tion"  ("De  la  Réparation  Civile  des  Délits"),  published 
in  1898  and  crowned  by  the  Faculty  of  Law  of  Paris 
and  by  the  Academy  of  Legislation  of  Toulouse.  Three 
years  later  he  wrote  his  "Attempt  at  a  General  Theory 
of  Subrogation."  He  contributed  articles  on  private 
law  to  the  Revue  de  Droit  Civil.  About  1902  he  became 
Professor  in  the  Faculty  of  Law  of  the  University  of 
Lille,  his  latest  designation  being  Professor  of  Civil 
and  Criminal  Law  in  that  institution.  His  earlier  pub- 
lications suggest  the  legal  specialist  more  than  the  creator 
of  a  general  theory  of  law.  In  1906  he  published  a  short 
work  on  "Contingent  Rights"  ("Des  Droits  Eventuels") 
which  has  a  certain  significance  from  a  philosophical 
standpoint.  By  far  his  most  important  production  in 
which  his  theoretical  position  is  for  the  first  time  clearly 
developed,  is  the  "Fundamental  Notions,"  appearing 
in  1911,  the  first  two  hundred  pages  of  which  are  here 
translated  in  their  entirety.  This,  so  far  as  we  have 
discovered,  is  Professor  Demogue's  latest  book. 

Demogue  is  remarkable  for  a  happy  way  of  brushing 
aside  the  veil  of  fiction  and  illusion  that  obscures  the 
realities  behind  familiar  concepts.  In  the  facility  which 
so  readily  pierces  these  illusions  is  a  great  keenness  and 
clearness  of  vision.  He  has  a  felicitous  manner  of  pass- 
ing in  review  a  bewildering  procession  of  images,  of 
presenting  with  kaleidoscopic  variety  a  rapid  succession 
of  different  perspectives  of  the  same  object.  He  is  one 
of  those  writers  who  appear  not  so  much  to  work  out  a 
preconceived  plan  as  to  develop  their  theme  spon- 
taneously as  they  move  along;  this  he  does  with  a  singu- 
lar swiftness  and  concentration  of  thought,  with  a  rare 
impressibility  striving  always  to  reproduce  the  nuances 
of  a  complex  reality.  The  preconceived  design,  however, 
is  certainly  there,  and  may  be  grasped  by  gauging  the 
final  result  of  this  accumulation  of  particular  impressions 


EDITORIAL  PREFACE  xlix 

which  form  the  materials  of  an  elaborate  yet  thoroughly 
coherent  logical  structure.  Of  this  informal  mental 
habit  there  are  two  types:  the  bellettristic  is  the  more 
familiar,  leading,  as  in  the  case  of  Mr.  Henry  James,  to 
a  careless  and  purposeless  intellectual  curiosity  that  is 
content  to  grope  for  reality  without  trying  to  seize  and 
retain  it  as  part  of  a  formal  construction.  But  there 
is  also  another  kind  of  analytical  improvisation  which 
is  dominated,  unlike  impressionism,  by  a  passion  for  the 
construction  of  a  complete,  objectively  valid,  adequate 
definition  of  the  complex  studied,  by  the  purpose  of 
seeking  a  fruitful  realistic  interpretation  that  shall 
faithfully  mirror  the  intricate  actual  relationships  from 
which  the  formulated  conception  must  derive  its  value. ^^ 
This  superb  realism  which  wins  Demogue  the  admiration 
of  his  reader  throws  a  clear,  white  light  into  the  obscurer 
regions  of  jurisprudence;  it  makes  for  a  sharper  division 
between  the  real  and  the  fictitious,  between  science  and 
dogmatism,  than  we  find  in  most  discussions  of  the 
essential  nature  of  juridical  principles.  By  dissolving 
fictions  it  supplies  a  technic  of  legal  theory  that  is 
instructively  applied  and  that  is  likely  to  be  imitated 
with  fruitful  consequences  by  others  who  are  forced  to 
acclaim  its  value. 

Associated  with  this  method  is  a  philosophic  detach- 
ment. Wary  of  illusions,  Demogue  neither  follows  the 
Solidarists  in  one  direction  nor  the  old-fashioned  indi- 
vidualists in  another.  Demogue  thus  attains,  if  not  the 
goal  of  a  pure  rationalism,  a  position  well  advanced  on 
the  road  toward  it.^^     His  law  of  nature  —  a  term  he  is 

>s  Cf.  Bergson's  interesting  characterization  of  Tarde,  quoted  by  Mr. 
Lindsey  in  Tarde's  "Penal  Philosophy,"  vol.  5,  Modern  Criminal  Science 
Series,  xxv. 

>«  Tanon  is  an  interesting  subject  for  comparison  in  this  connection. 
For  an  example  of  his  work,  see  his  valuable  estimate  of  Jhering  appended 
to  "The  Law  as  a  Means  to  an  End"  in  this  Series. 


1  EDITORIAL  PREFACE 

willing  to  admit  if  it  can  be  freed  from  its  eighteenth 
century  connotations  —  a  thing  of  changing  and  uncer- 
tain content  and  of  most  varied  concrete  manifestations, 
is  not  a  positive  "rule  of  law";  it  is  a  rule  of  law  not 
directly  accessible  to  mankind,  but  only  to  be  sought 
for  in  the  struggle  to  achieve  harmonious  adjustments 
of  social  life.  It  is  therefore  an  ideal  law  rather  than 
a  positive  law.  It  is  here  that  he  shows  himself  not  a 
follower  of  the  Positivist  school. 

While  Demogue  affirms  the  utility  of  the  valuable 
though  incomplete  teachings  of  the  Historical  and 
Positivist  schools/^  he  sets  himself  in  opposition  to  the 
Positivists  by  insisting  that  their  method  leaves  a  void 
in  the  science  of  morals.  Law  and  morality,  he  says, 
cannot  ignore  the  central  problem  of  the  object  and 
meaning  of  life;  they  must  get  into  this  question  "either 
frankly  or  surreptitiously."  As  Demogue  aptly  ob- 
serves —  and  the  observation  is  one  that  pluralists 
should  heed  and  that  goes  far  toward  atoning  for  that 
pluralistic  tendency  of  which  there  are  perhaps  traces 
in  Demogue's  own  teachings — "the  improvement  of 
conduct  [mœurs]  or  of  law  must  be  directed  toward 
a  fixed  object,  or  the  relative  will  not  indicate  a  relation 
with  anything,  which  is  inconceivable." 

There  is  a  kind  of  agnosticism  in  Demogue's  treatment 
of  the  problem  of  the  absolute.  He  considers  the  ideal 
law  most  difficult  to  discover  because  of  the  absence  of 
any  generally  received  criterion.  When  thought  to 
have  been  discovered  it  will  be  imperfect.  This  ideal 
law,  he  believes,  is  to  be  approached  in  the  actual  strife 
of  wills,  and  in  the  conscious   comparison  and    recon- 

1'  For  the  recent  reaction  against  these  schools,  see  the  sections  on 
"The  Revival  of  Natural  Law  in  France"  and  "The  Stage  of  Unification," 
in  Professor  Pound's  "The  Scope  and  Purpose  of  Sociological  Juris- 
prudence," 24  Harvard  Law  Review  691  and  following  volume,  at  pp. 
159  and  509. 


EDITORIAL  PREFACE  li 

ciliation  of  the  principles  of  action.  Demogue,  however, 
is  not  a  beUever  in  a  merely  contingent,  technical,  or 
empirical  harmonization  of  divergent  principles.  He 
quotes,  with  some  apparent  approval,  Hauriou's  remark  ^* 
that  there  are  three  means  of  avoiding  contradictions  — 
partial  elimination,  synthesis,  and  compromise.  But 
he  does  not  believe  in  always  forcing  contradictions  to 
a  trial  of  strength  ^^;  there  may  be  advantages  some- 
times in  "decentralizing"  the  conflicts.  As  the  rôle 
of  synthesis  is  not  excluded  an  anti-intellectualistic 
position  is  not  here  distinctly  developed,  though  possibly 
implied  to  a  certain  extent. 

"This  ideal  state  of  law  in  the  presence  of  certain 
social  facts,  historical,  economic,  and  other,  will  be 
always  imperfect,  for  law  is  created  to  respond  to  actual 
needs  whose  relative  importance  is  hard  to  establish,  and 
also  to  respond  to  every  one's  taste."  There  is  in  this 
something  suggestive  of  the  anti-intellectualistic  position 
of  Tarde  in  treating  the  problem  of  moral  duty  as  simply 
one  of  feeling  and  desire.  Laws,  according  to  Demogue, 
must  look  "to  the  satisfaction  of  human  tastes,  to  the 
realization  of  varied  conceptions  of  life."  But  while 
Demogue  at  times  suggests  a  resemblance  between  his 
theory  and  Merkel's  theory  of  the  compromise  character 
of  the  law,  Merkel  goes  further  when  hesaysr^"  "Law 
in  its  essence,  and  not  by  way  of  exception,  here  or  there, 
but  always  and  everywhere,  has  an  alogical  nature." 
Merkel's  realism  here  leads  him  into  anti-intellectualism. 
On  the  other  hand  the  general  atmosphere  of  Demogue's 
exposition,  including  the  authors  whom  he  cites, 
strengthens  the  impression  that  he  is  at  least  an  eager 
spectator  of  attempts  to  discover  some  higher  basis  for 

"  Part  ii,  chapter  xii,  footnote  92  post. 

"Ibid.,  footnote  87. 

»o  "Law  as  a  means  to  an  End,"  in  this  Series,  452. 


m  EDITORIAL  PREFACE 

the  integration  of  ideal  law  than  the  Pyrrhonic  doctrines 
of  contingency  and  of  compromise  could  ever  yield. 


THE   WORKS   OF    FOUILLÉE,    CHARMONT,    DUGUIT 
AND  DEMOGUE 

Fouillée 

La  Philosophie  de  Platon.     2  v.,  1869;  2d  éd.,  4  v.,  Hachette,  1888-9. 

Platonis  Hippias  minor  sive  Socratica  contra  liberum  arbitrium 
argumenta.     (Doctorate  thesis.) 

La  Liberté  et  le  Déterminisme.  1872;  4th  éd.  Alcan,  1895.  (Doc- 
torate thesis.) 

La  Philosophie  de  Socrate.     2  v.,  Alcan,  1874. 

Histoire  Générale  de  la  Philosophie.  Delagrave,  1875.  (Re-issued 
in  many  subsequent  editions,  with  added  chapters  on  contem- 
porary philosophy.) 

L'Idée  Moderne  du  Droit.     Hachette,  1878.     6th  éd.  1909. 

La  Science  Sociale  Contemporaine.     Paris,  Hachette,  1880. 

Critique  des  Systèmes  de  Morale  Contemporaine.  Alcan,  1883; 
4th  éd.  1899. 

La  Propriété  Sociale  et  la  Démocratie.     Alcan,  1884;   2d  éd.  1895. 

L'Avenir  de  la  Métaphysique  Fondée  sur  l'Expérience.     Alcan,  1889. 

La  Morale,  l'Art,  et  la  Religion  selon  Guyau.  Alcan,  1889;  4th  éd. 
1900. 

L'Évolutionnisme  des  Idées-Forces.     Alcan,  1890. 

L'Enseignement  au  point  de  vue  national.     Hachette,  1891, 

Descartes.     1893. 

La  Psychologie  des  Idées-Forces.     2  v.,  Alcan,  1893. 

Tempérament  et  Caractère.     Alcan,  1895. 

Le  Mouvement  Positiviste  et  la  Conception  Sociologique  du  Monde. 
Alcan,  1896. 

Le  Mouvement  Idéaliste  et  la  Réaction  contre  la  Science  Positive. 
Alcan,  1896. 

La  Psychologie  du  Peuple  Français.     Alcan,  1898. 

Les  Études  Classiques  et  la  Démocratie.     Colin,  1899. 

Nietzsche  et  l'Immoralisme.     Alcan,  1902. 

Esquisse  Psychologique  des  Peuples  Européens.     Alcan,  1903. 

Le  Moralisme  de  Kant  et  l'Amoralisme  Contemporain.     Alcan,  1905. 

La  Morale  des  Idées-Forces.     Alcan,  1908. 


EDITORIAL  PREFACE  liii 

Le  Socialisme  et  la  Sociologie  Réformiste.     Alcan,  1909. 
La  Démocratie  Politique  et  Sociale  en  France. 
Eléments  Sociologiques  de  la  Morale. 
La  France  au  point  de  vue  moral. 
La  Réforme  de  l'Enseignement  par  la  Philosophie. 
La  Conception  Morale  et  Civique  de  l'Enseignement.     (Reprinted 
from  Revue  Bleu.) 


Charmant 

Les  Analogies  de  la  Jurisprudence  Administrative  et  de  la  Juris- 
prudence Civile.     Larose  and  Tenin,  1907.     (34  pp.) 

Le  Droit  et  l'Esprit  Démocratique.     Masson,  1908.     (243  pp.) 

La  Renaissance  du  Droit  Naturel.  Paris,  Masson;  Montpellier, 
Coulet;   1910.     (218  pp.) 

Les  Transformations  du  Droit  Civil.     Colin,  1912.     (294  pp.) 


Duguit 

(With  Henry  Monnier.)  Les  Constitutions  et  les  Principales  Lois 
Politiques  de  la  France  depuis  1789.  Pichon,  1898;  2d  éd., 
432  pp.,  1908. 

Études  de  Droit  Public.  2v.— L'État,  le  Droit  Objectif  et  la  Loi 
Positive.  Fontemoing,  1901.  (623  pp.) — L'État,  les  Gouver- 
nants et  les  Agents.     1903. 

Le  Mandat  de  Droit  Public  et  la  Théorie  Juridique  de  l'Organe. 
1902.     (Extract  from  Revue  Générale  du  Droit,  23  pp.) 

Manuel  de  Droit  Constitutionnel:  Théorie  Générale  de  l'État — 
Organisation  Politique.  Fontemoing,  1907.  (1140  pp.)  2d 
éd.,  1911  (469  pp.). 

Le  Droit  Social,  le  Droit  Individuel  et  la  Transformation  de  l'État: 
Conférences  Faites  a  l'École  des  Hautes  Études  Sociales.  Alcan, 
1908.     (158  pp.) 

Traité  de  Droit  Constitutionnel.  2v.,  Fontemoing,  1911. — Théorie 
Générale  de  l'État.  (Les  Éléments,  les  Fonctions,  les  Organes 
de  l'État,  les  Agents  Publics.)  (570  pp.)— Les  Libertés  Pub- 
liques.    L'Organisation  Politique.     (558  pp.) 

Les  Transformations  Générales  du  Droit  Privé  depuis  le  Code 
Napoléon.     Alcan,  1912.     (206  pp.) 

Le  Syndicalisme. 

Les  Transformations  du  Droit  Public.     Colin,  1913. 


Uv  EDITORIAL  PREFACE 

Demogue 

De  la  Réparation  Civile  des  Délits.     Rousseau,  1898. 

Essai  d'une  Théorie  Générale  de  la  Subrogation  Réelle.     Pichon, 

1901. 
Obligations     et     Contrats     Spéciaux.       Étude    de    jurisprudence. 

RDC,  1902  to  1910. 
Des    Droits    Éventuels:  hypothèses    où    ils    prennent    naissance; 

nature  et  effets.     Sirey,  1906.     (158  pp.) 
La  Notion  de  Sujet  de  Droit;  caractères  et  consequences.     Larose 

and  Tenin,  1910.     (Extract  from  RDC,  no.  3,  1909;  49  pp.) 
La  Criminalité  et  la  Répression  en  Champagne  au  XVII P  Siècle 

(1715-1789).     Rheims,     Monce,     1910.     (Extract    from    tome 

125  of  Travaux  de  l'Académie  de  Reims;  95  pp.) 
L'Amende   comme   Peine   Complémentaire.     Rapport   au    Congrès 

pénitentiaire  international  de  Budapest.     1905. 
L'Application  de  la  Peine  de  Mort  en  France.     Rapport  au  Congrès 

pénitentiare  de  Washington.     1910. 
La  Nationalité  et  la  Denationalisation  des  Sociétés.     Rapport  au 

Congrès  des  sociétés,  Bruxelles.     1910. 
Des  Modifications  aux  Contrats  par  Volonté  Unilatérale.     Sirey, 

1907. 
Les  Notions  Fondamentales  du  Droit  Privé:    essai   critique    pour 

servir  d'introduction  à  l'étude  des  obligations.     Rousseau,  1911. 

(681  pp.) 


INTRODUCTION 
By  John  B.  Winslow^ 


Lovers  of  Thackeray  will  doubtless  remember  the 
surprise  and  disgust  with  which  Mr.  Yellowplush  viewed 
the  amazing  ignorance  of  the  French  people  on  the  most 
commonplace  subjects,  and  they  may,  perhaps,  recall  his 
final  generalization  on  the  subject,  as  vigorous  in  its 
expression  as  it  was  vicious  in  its  orthography,  which 
ran  thus:  "The  moor  I  trawle,  the  moor  I  see  of  the 
world  and  other  nations,  I  am  proud  of  my  own,  and 
despise  and  deplore  the  retchid  ignorance  of  the  rest  of 
Yourup." 

Perhaps  it  would  not  be  correct  to  say  that  this  fairly 
represents  the  attitude  of  the  Anglo-Saxon  mind  towards 
Continental  thought,  but  it  would  be  entirely  correct 
to  say  that  like  all  good  caricatures  it  has  a  very  solid 
basis  of  fact. 

The  average  Englishman  has  always  had  a  robust 
contempt  for  foreign  customs  and  institutions  so  far  as 
they  differed  from  his  own,  and  an  abiding  conviction 
that  there  can  be  no  ideas  even  approaching  in  excellence 
English  ideas.  In  addition  to  this  he  frequently  has 
a  feeling  of  genuine  pity  for  those  who  have  not  been 
fortunate  enough  to  be  born  under  British  laws  and 
institutions.  We  in  America  have  been  much  inclined 
to  share  in  these  ideas.  However  much  we  may  criticize 
our  English  brethren,  we  have  always  been  proud  of  our 

1  Chief  Justice  of  the  Supreme  Court  of  Wisconsin. 


Ivi  INTRODUCTION 

lineage,  boastful  of  our  so-called  Anglo-Saxon  birth- 
right, and  profoundly  sorry  for  those  unfortunate  races 
which  have  been  obliged  to  make  shift  without  those 
blessings. 

This  attitude  of  mind  has  certain  well  understood 
advantages.  The  great  leaders  of  men  have  always 
had  supreme  confidence  in  the  soundness  of  their  own 
conclusions;  the  great  leaders  among  the  nations  always 
have  been  and  always  will  be  egotistical  nations. 

But  this  is  not  the  mental  attitude  of  the  true  phil- 
osopher, and  legislators  and  jurists  ought  above  all 
things  to  be  true  philosophers,  for  the  law  which  is  not 
philosophical  is  not  law  in  any  true  sense,  but  only  an 
arbitrary  whim  tricked  out  in  the  garb  of  law.  The 
philosopher  welcomes  truth  whatever  its  source;  he 
realizes  that  he  has  no  monopoly  upon  it  and  he  is  not 
ashamed  to  acknowledge  the  fact. 

It  is  quite  certain  that  the  American  bar  as  a  whole 
has  been  slow  to  believe  that  anything  good  could  come 
out  of  the  Nazareth  of  Continental  legal  philosophy 
or  that  there  could  be  any  substantial  merit  in  any  legal 
system  not  founded  upon  the  common  law  of  England. 

The  Great  Charter,  wrung  from  the  unwilling  hand  of 
John  at  Runnymede,  declares  that  "no  freeman  shall 
be  taken  or  imprisoned,  or  disseised  or  outlawed,  or 
banished,  or  any  ways  destroyed,  nor  will  we  pass  upon 
him,  nor  will  we  send  upon  him,  unless  by  the  lawful 
judgment  of  his  peers,  or  by  the  law  of  the  land." 

The  words  "law  of  the  land"  had  a  certain  and  fixed 
meaning  at  that  time  as  now,  though  it  was  difficult 
then  as  it  is  now  to  set  the  exact  limits  of  their  meaning 
in  a  given  case.  That  m^eaning  included,  of  course, 
not  only  the  meager  statute  law  of  the  time  but  also 
many  ill-defined  but  generally  recognized  rules  of  prop- 
erty and   conduct  which  rested  not  on  legislative  or 


INTRODUCTION  Ivii 

executive  fiat,  but  on  long  continued  custom  and  pre- 
cedent. These  rules  were  customs  indeed  rather  than 
laws;  customs  dating  back  into  the  remote  past  and 
which  had  been  evolved  slowly  "line  upon  line,  precept 
upon  precept,  here  a  little  and  there  a  little";  customs 
not  written  down  or  officially  proclaimed  but  recog- 
nized as  embodying  the  natural  and  God-given  rights 
of  Englishmen  everywhere.  They  were  largely  the 
result  of  judicial  precedents  which,  although  not  pre- 
served in  printed  reports,  were  handed  down  from 
generation  to  generation,  imperceptibly  acquiring  the 
sanctity  that  goes  with  age. 

It  goes  without  saying  that  the  following  of  precedent 
has  been  one  of  the  distinctive  marks  of  the  English 
legal  system  and  of  all  other  systems  founded  upon  it. 
Not  that  the  idea  has  been  absent  from  other  legal 
systems,  but  simply  that  it  has  not  acquired  that  greatly 
preponderant  influence  in  them  which  it  has  acquired 
in  the  Anglo-Saxon  systems.  The  advantages  arising 
from  the  systematic  following  of  precedent  are  un- 
deniable. Stability  in  the  law  is  a  desideratum  which 
can  hardly  be  overestimated,  and  the  following  of 
precedent  strongly  tends  toward  stability  and  certainty. 
It  has  been  said  with  truth  that  upon  many  questions 
it  is  more  important  that  the  law  be  settled  in  some  way 
than  it  is  that  it  should  be  settled  in  any  particular  way. 

Valuable  in  this  respect  as  is  the  effect  of  the  following 
of  precedent,  it  must  still  be  admitted  that  it  has  also 
disadvantageous  effects  which  ought  not  to  be  mini- 
mized or  forgotten. 

Chief  among  these  effects  is  doubtless  the  inevitable 
tendency  to  obey  its  dictates  implicitly  at  the  expense 
of  reason.  Such  obedience  to  precedent  fetters  the 
intellect  and  sets  arbitrary  bounds  to  the  flight  of  human 
thought.     Under  its  influence  the  lawyer  is  likely  to 


Iviii  INTRODUCTION 

become  a  mere  searcher  of  digests,  a  slave  of  card  indices. 
Confronted  with  a  cHent  and  an  actual  case,  he  begins 
at  once  a  feverish  search  for  a  similar  case  in  that  vast 
and  ever  increasing  store  of  precedents  which  is  at  once 
our  boast  and  our  despair;  and,  having  found  it, 
he  too  often  rests  content  therewith  and  metaphorically 
checks  his  reasoning  powers  at  the  parcel  counter  as 
he  enters  the  court  room  to  try  his  case. 

So,  too,  with  the  legal  text-books  of  the  time.  Under 
the  extreme  development  of  the  rule  of  precedent  they 
have  become,  with  a  few  notable  and  welcome  exceptions, 
mere  compilations  of  precedents,  while  the  lawyer's 
shelves  fairly  groan  with  cyclopedias  whose  merits  are 
measured  by  the  number  of  precedents  which  they  cite. 

If  our  civilization  were  fixed,  our  political,  social  and 
economic  conditions  unchanging  and  unchangeable, 
the  unquestioning  following  of  precedent  would  be 
endurable  if  not  absolutely  desirable,  but  the  conditions 
are  not  fixed.  The  race  has  never  stood  still  nor  has 
its  progress  ever  been  so  rapid  as  within  the  past  half 
century.  The  simple  life  has  gone  or  is  rapidly  going; 
the  complex  life  is  here  and  the  precedent  which  served 
its  day  and  generation  well  may  fail  miserably  when 
it  is  attempted  to  apply  it  to  the  solution  of  modern 
problems.  Consciousness  of  this  fact  has  been  some- 
what slow  in  coming,  but  it  has  come  at  last.  We  realize 
quite  generally  that  the  common  law,  i.e.,  the  law  of 
precedent,  is  not  able  to  deal  successfully  with  very 
many  of  the  pressing  questions  of  the  present  day  either 
civilly  or  criminally,  and  that  neither  English  nor  Ameri- 
can jurists  have  sounded  the  depths  of  legal  philosophy. 

So  also  we  realize  that  we  are  now  in  the  midst  of  a 
period  of  great  legislative  activity  arising  from  the 
attempts  which  are  being  made  in  every  legislative  body 
to  adjust  the  "law  of  the  land"  so  that  it  will  more 


INTRODUCTION  lîx 

satisfactorily  meet  the  changed  conditions.  There  are 
some  who  seem  to  believe  that  this  activity  will  be 
short-lived  and  that  it  will  have  little  permanent  effect, 
but  he  who  has  any  adequate  conception  of  the  move- 
ments of  the  time  must  realize  that  it  will  continue  for 
many  years,  and  that  our  future  must  largely  depend 
upon  the  wisdom  of  the  men  who  control  it. 

Lawyers  have  always  borne  an  important,  if  not  a 
controlling  part  in  the  legislation  of  our  American  states, 
and  it  is  to  be  expected  that  they  will  continue  to  bear 
that  part  in  the  future.  Shall  these  legislator-lawyers 
be  of  the  digest  and  card  index  variety,  or  shall  they  be 
philosopher  lawyers  who  have  endeavored  to  make  some 
study  of  the  springs  of  human  thought  and  the  causes 
of  human  action?  Shall  they  be  men  whose  legal  educa- 
tion has  been  confined  to  the  narrow  compass  of  the 
decided  law  of  England  and  America,  or  shall  they  be 
men  who  have  in  addition  made  some  study  of  the  legal 
philosophies  of  continental  Europe? 

These  questions  really  admit  of  but  one  answer.  So 
long  as  we  rested  securely  in  the  belief  that  the  English 
common  law  was  a  sort  of  divinely  ordained  institution, 
capable  of  meeting  and  solving  every  problem,  there 
seemed  to  be  no  need  to  examine  the  legal  philosophies 
of  other  nations  for  help  ;  but  with  the  confession  on  our 
lips  that  the  common  law  is  not  all-sufficient  and  that 
it  must  be  supplemented  by  legislative  action  on  a  con- 
siderable scale,  the  desirability,  —  nay,  the  necessity,  — 
of  the  study  of  other  systems  becomes  at  once  apparent. 
This  does  not  mean  that  the  foreign  legal  philosopher 
has  satisfactorily  solved  all  the  problems  of  modern  life, 
or  that  he  has  said  the  last  word  on  the  subject,  but  sim- 
ply that  he  has  made  earnest  attempts  to  solve  those 
problems  from  viewpoints  different  from  our  own,  and 
that  the  mind  which  is  seeking  for  truth  on  great  ques- 


Ix  INTRODUCTION 

tions  cannot  afford  to  ignore  the  independent  studies 
of  other  minds  seeking  the  same  truth  amid  different 
surroundings  and  conditions. 

I  do  not  feel  that  it  is  any  part  of  my  duty  to  attempt 
a  review  of  the  present  volume.  The  authors  from 
whose  writings  its  contents  have  been  taken  represent 
different  schools  of  French  thought,  but  all  command 
the  close  attention  of  the  thoughtful  reader,  and  all  are 
stimulating  to  the  intellect  even  though  they  may  not 
be  compelling  to  the  judgment. 

The  important  question  is  not  whether  M.  Fouillée 
be  right  in  his  contention  that  French  legal  philosophy 
is  the  philosophy  of  liberty  and  social  justice,  or  whether 
we  agree  with  M.  Duguit's  idea  that  the  modern  State 
has  broken  down  and  must  be  supplanted  by  a  different 
social  order.  The  important  question  is  whether  the 
minds  of  American  jurists  and  lawmakers  shall  be  so 
stimulated  and  their  mental  outlook  so  broadened  by 
careful  study  of  this  volume  and  others  of  similar  charac- 
ter that  they  shall  approach  the  great  tasks  which  lie 
immediately  before  them  not  merely  as  lawyers,  striving 
to  adapt  old  precedents  to  new  problems,  but  as  con- 
structive thinkers  as  well. 


INTRODUCTION 

By  F.  P.  Walton! 


This  series  and  the  sister  series  on  Continental  Legal 
History  are  symptomatic  of  a  widening  of  the  lawyer's 
horizon.  It  may  be  said  without  serious  disregard  of 
truth  that  English-speaking  lawyers  of  the  last  generation 
took  but  a  slight  interest  in  the  history  of  any  other  law, 
except  perhaps  that  of  Rome,  and  regarded  legal  philo- 
sophy with  unconcealed  aversion.  Nor  was  this  attitude 
inexplicable.  The  admirable  histories  of  law,  English, 
French,  German,  Italian,  which  are  now  on  our  shelves 
have  almost  without  exception  been  produced  within 
the  last  thirty  or  forty  years,  and  the  older  works  on 
legal  philosophy  were  written  with  so  little  reference  to 
the  actual  law  that  they  made  no  appeal  to  the  practical 
lawyer. 

Moreover,  though  it  sounds  paradoxical,  the  lawyer 
of  thirty  years  ago  was  more  overwhelmed  by  the  law 
reports  than  the  lawyer  of  to-day.  In  England,  and 
sLill  more  in  America,  the  mountainous  mass  of  reported 
cases  crushed  his  spirit.  It  seemed  hopeless  to  keep 
up  with  the  decisions,  and  absurd  to  range  further  afield. 
The  mass  shows  no  sign  of  diminishing,  but  we  see  now 
more  clearly  that  exclusive  attention  to  the  reports  does 
not  produce  the  best  legal  minds. 

Out  of  the  welter  of  cases  a  system  must  be  created, 
and  some  grasp  of  legal  history  and  of  legal  philosophy 

iK.C,  LL.D.,  of  the  Khedivial  School  of  Law,  Cairo,  and  formerly 
Dean  of  the  Faculty  of  Law  in  McGill  University,  Montreal. 


Ixii  INTRODUCTION 

helps  the  student  to  make  such  a  system  for  himself. 
Once  this  truth  has  penetrated,  the  value  of  Continental 
writings  becomes  evident.  French  lawyers  especially 
have  had  a  better  chance  of  presenting  the  law  in  a 
logical  way  as  a  series  of  deductions  from  a  small  number 
of  fixed  principles. 

The  remarkable  development  of  the  French  law  since 
the  Code  Napoléon  has  been  in  the  main  the  work  of  the 
commentators  and  the  judges  and  has  been  achieved 
with  comparatively  little  legislation.  It  offers  a  field 
of  study  almost  as  profitable  to  the  common-lawyer 
as  to  the  civilian.  And  in  France  the  commentator  and 
the  legislator  have  been  singularly  aided  and  stimulated 
by  critical  and  philosophical  writers  who  have  discussed 
with  academic  freedom  the  fundamental  principles  of 
law  and  the  ways  in  which  it  might  be  molded  to  meet 
new  needs. 

A  fine  example  may  be  found  in  the  work  of  Professor 
René  Demogue  on  "The  Fundamental  Notions  of  the 
Civil  Law,"  included  in  this  volume.  It  does  not  exactly 
fit  into  any  of  the  "cadres"  of  the  law  library.  It  is  not, 
like  many  of  our  books  on  general  jurisprudence,  an 
attempt  to  give,  in  a  somewhat  abstract  way,  a  skeleton 
of  the  positive  law,  nor  is  it  a  philosophy  of  law  in  the 
old  sense.  It  is  rather  a  work  of  philosophy  applied 
to  the  law.  It  is  written  with  the  eye,  a  very  acute  eye, 
on  the  object,  and  it  contains  full  and  excellent  discus- 
sions of  many  difiicult  questions.  Is  the  distinction 
between  real  and  personal  rights  so  fundamental  as 
we  have  supposed?  Can  we  conceive  of  a  right  inherent 
in  a  future  person?  What  is  the  nature  of  legal  per- 
sonality? Does  the  theory  of  responsibility  in  damages 
require  restatement?  Upon  these  matters  and  a  hun- 
dred more  Demogue  has  something  interesting  and 
suggestive  to  say. 


INTRODUCTION  Ixiiî 

The  writers  represented  in  this  volume  do  not  belong 
to  one  school,  but  it  is  a  happy  thought  to  bring  them 
here  under  the  same  roof.  They  approach,  each  in  his 
own  way  and  from  different  angles,  the  same  funda- 
mental problems.  Has  the  law  any  ethical  basis,  and 
if  so  what  is  it?  Is  the  law  entitled  to  command  the 
obedience  of  the  citizen,  and  if  so  why?  Is  there  any 
ideal  law  to  which  all  positive  laws  ought  so  far  as  may 
be  to  approximate?  If  we  must  assume  such  an  ideal 
law,  is  it  something  absolute  and  permanent  —  a  sort  of 
fixed  star  by  which  the  legislator  and  the  judge  may 
shape  his  course;  or  is  it  rather  an  ideal  which  every 
society  is  continually  recreating  for  itself  —  an  ideal 
which  is  not  the  same  in  one  country  as  in  another  and 
varies  from  age  to  age?  Has  the  State  as  the  machinery 
for  preserving  social  order  broken  down,  and,  if  so  can 
any  other  and  better  machinery  be  substituted  for  it? 

These  are  questions  to  which  no  final  and  complete 
answer  can  be  given.  They  will  be  debated  so  long  as 
the  human  mind  retains  its  activity. 

But  the  solutions  which  are  presented  in  this  volume 
by  this  little  group  of  French  writers  are  full  of  interest 
and  value.  M.  Léon  Duguit  writes  as  a  Syndicalist, 
though  he  does  not  belong  to  the  revolutionary  wing  of 
the  party.  He  thinks  the  modern  State  has  proved 
itself  a  failure.  It  is  true,  to  be  sure,  that  the  State  in 
certain  directions  has  never  shown  such  feverish  activity 
as  in  our  day.  There  has  never  been  such  a  flood  of 
social  legislation.  We  are  bringing  in  socialism  piece- 
meal, by  taking  over  and  administering  public  utilities, 
by  providing  for  old  age  pensions,  national  insurance, 
workmen's  compensation,  and  so  forth.  The  State,  in 
short,  seems  to  some  of  us  to  be  alive  and  kicking  as  never 
before.  But  in  spite  of  all  this,  M.  Duguit  will  have 
it  that  the  State  is  dead,  and  that  when  it  is  decently 


Ixiv  INTRODUCTION 

buried  we  must  find  some  better  way  of  regulating  our 
social  life  and  protecting  our  general  welfare.  Whether 
we  agree  with  him  or  not,  his  discussion  always 
commands  our  interest.  There  is  no  more  brilliant  or 
arresting  writer  in  this  field,  and  the  reader  of  the  present 
work  is  strongly  recommended  to  take  along  with  it 
the  latest  volume  by  the  same  author,  "Les  Transforma- 
tions du  Droit  Public." 

Interesting  as  are  all  the  writings  here  collected,  it 
is  probably  to  the  work  of  M.  Fouillée  that  the  reader 
will  first  turn.  There  is  a  sad  felicity  in  its  publication 
at  this  moment.  It  is  a  comparison  of  German,  French, 
and  English  theories  as  to  the  basis  of  law  and  the 
nature  and  sanction  of  legal  rights.  No  topic  can  be 
more  full  of  actuality  when  the  three  great  nations  of 
Western  Europe  are  engaged  in  a  life  and  death  struggle. 

The  dominant  school  of  Germany  teaches  that  the 
individual  has  no  rights  except  such  as  the  State  chooses 
to  give  him,  that  the  notion  of  there  being  natural  rights 
to  liberty,  equality,  and  so  on,  is  utterly  false,  and  that 
in  dealing  with  other  States  the  State  has  the  right  to 
do  whatever  it  has  the  power  to  do.  "In  the  world  of 
man,"  says  Schopenhauer,  "as  in  the  animal  world,  it  is 
force  and  not  law  which  prevails.  .  .  .  Law  is  only  the 
measure  of  power."  War  is  necessary  and,  far  from 
being  an  evil,  is  the  great  regenerator  and  purifier  of  the 
nations.  The  strong  nation  has  the  right  to  conquer 
and  crush  the  weak.  In  the  words  of  General  Bern- 
hardi:  "In  such  cases  might  gives  the  right  to  occupy  or 
to  conquer.  Might  is  at  once  the  supreme  right,  and 
the  dispute  as  to  what  is  right  is  decided  by  the  arbitra- 
ment of  war.  War  gives  a  biologically  just  decision, 
since  its  decision  rests  upon  the  very  nature  of  things." 

Since  M.  Fouillée  wrote  in  1878,  the  tide  of  German 
thought  has  been  setting  more  and  more  strongly  in  this 


INTRODUCTION  Ixv 

direction.  Schopenhauer  and  Nietzsche  have  been 
brought  home  to  the  masses,  and  the  simple  and  touching 
faith  that  might  is  right  has  sunk  deep  into  the  German 
conscience. 

The  immensely  popular  book  of  General  von  Bern- 
hardi,  "Germany  and  the  Next  War,"  composed  with 
the  most  refreshing  candor,  is  merely  this  doctrine 
writ  large  for  the  populace. 

M.  Fouillée  takes  as  the  dominant  school  of  English 
thought  the  UtiHtarians,  particularly  John  Stuart  Mill 
and  Herbert  Spencer.  But  the  fashions  of  philosophy 
change,  and  if  M.  Fouillée  had  been  writing  in  1914 
instead  of  in  1878,  he  would  hardly  have  chosen  Mill 
and  Spencer  as  typical  exponents  of  English  thought. 
At  the  same  time  his  criticism  of  the  Utilitarians  is  well 
worth  reading.  M .  Fouillée  is  not  misled  by  the  apparent 
cold-bloodedness  of  their  calculations  of  debit  and  credit, 
and  though  he  disputes  their  contention  that  a  sound 
ethical  basis  of  law  can  be  found  in  the  greatest  happiness 
of  the  greatest  number,  he  does  full  justice  to  their 
generous  enthusiasm  for  humanity,  their  ardent  advocacy 
of  freedom,  and  their  passionate  devotion  to  peace. 

The  French  school,  according  to  M.  Fouillée,  is  at 
the  opposite  pole  from  the  German.  Man  as  such  has 
certain  rights,  the  right  to  liberty,  the  right  to  equality 
of  treatment,  and  so  forth  ;  and  we  must  then  posit  an 
ideal  justice  based  on  the  dignity  of  man.  Social  justice 
can  be  realized  only  in  the  democratic  State,  and  if  jus- 
tice is  impotent  unless  there  is  force  to  back  it  up,  yet 
force  without  justice  is  tyranny,  —  as  Pascal  said  long 
ago. 

M.  Fouillée  holds  that  France  has  the  special  mission 
of  being  among  the  nations  the  apostle  of  liberty.  The 
free  development  of  the  individual  in  a  free  republican 
State  is  the  ideal  of  humanity,  and  it  is  to  France  more 


Ixvi  INTRODUCTION 

than  to  any  other  country  that  the  world  owes  this 
conception  of  progress  in  freedom.     As  for 

The  good  old  rule,  the  simple  plan, 
That  they  shall  take  who  have  the  power 
And  they  shall  keep  who  can, 

it  may  be  venerable,  but  it  is  not  respectable,  whether 
as  a  rule  of  conduct  for  States  or  for  individuals.  It  is 
not  culture  but  savagery. 

M.  Fouillée,  like  Ulpian,  is  content  to  accept  ideal 
justice  as  an  innate  conception,  but  M.  Joseph  Char- 
mont  and  M.  Duguit  attempt  a  further  analysis  of  it. 
M.  Duguit  argues  that  law  is  at  the  bottom  a  creation  of 
the  human  conscience,  and  that  we  must  look  for  its 
sanction  in  the  belief  profoundly  penetrating  the  mass 
of  mankind  at  a  particular  time  and  place  that  such  and 
such  a  rule  is  imperative.  The  governors  no  less  than 
the  governed  are  subject  to  this  law;  it  is  immanent 
in  society.  Modern  society  is  not,  as  Nietzsche  main- 
tains, a  mere  conflict  of  appetites  or  shock  of  brute  forces. 
The  accidental  fact  that  an  individual  or  group  happens 
for  the  moment  to  be  stronger  or  better  armed  does  not 
thereby  make  any  quarrel  just  which  it  chooses  to  provoke. 
On  the  contrary,  the  very  fact  that  men  form  part  of  a 
social  group  or  even  of  humanity  as  a  whole  makes  them 
subject  to  certain  rules  of  conduct. 

Enough  has  been  said  to  direct  attention  to  the 
interesting  character  of  this  volume,  which,  with  all 
its  diversity,  is  not  without  a  certain  unity.  All  of 
the  writers  who  contribute  to  it  possess  in  a  high 
degree  that  quality,  in  which  French  writers  are  pre- 
eminent, of  being  able  to  treat  of  difficult  matters  with- 
out obscurity. 

This  volume  contains  much  to  interest  lawyers,  but 
its  appeal  is  by  no  means  limited  to  them. 


KEY  TO  TITLES  OF  PERIODICALS 

BAS Le  Bulletin  de  l'Académie  des  Sciences  Morales 

et  Politiques. 
BSP Le  Bulletin  de  la  Société  Fratiçaise  de  Philo 

Sophie. 

ED L'Eveil  Démocratique. 

GT La  Gazette  des  Tribunaux. 

JR   Le  Jotirnal  le  Radical. 

PT  Le  Petit  Temps. 

RB La  Revue  Bourguignonne. 

RCL    La  Revue  Critique  de  Législation. 

RDC La  Revue  de  Droit  Civil. 

RDP    La  Revue  de  Droit  Public. 

RE La  Revue  Interftationale  de  l'Enseignement. 

RM  M    La  Revue  de  Métaphysique  et  de  Morale. 

RP  La  Revue  Philosophique. 


PART  I 

A   BRIEF  SURVEY  OF  PHILOSOPHY  OF  LAW 
IN  FRANCE 

(A)  General  Characteristics  of  French  Legal 

Thought 

(B)  Recent  Phases  of  French  Legal  Philosophy 


(A)     GENERAL   CHARACTERISTICS  OF   FRENCH  LEGAL 
THOUGHT— ALFRED  FOUILLÉE 

Chapter       I.    The  Psychology  of  Peoples  and  the 

Philosophy  of  Law  1 

Chapter      II.    The  French  Spirit  and  the  Idea  of 

Law 7 

Chapter     III.    Antecedents  of  the  Philosophy  of 

Law  in  France 47 

Chapter     IV.    The   Idea   of   Law  in  the  French 

Philosophy  of  the  1800s  56 


(A)  GENERAL  CHARACTERISTICS  OF 
FRENCH  LEGAL  THOUGHT 

CHAPTER  V 

THE    PSYCHOLOGY    OF    PEOPLES    AND    THE 
PHILOSOPHY  OF   LAW 

GENERAL  SUBDIVISIONS  OF  THE  SUBJECT  —  COMPARI- 
SON OF  THE  THREE  LEADING  DOCTRINES. 

§L  General  Subdivisions  of  the  Subject.  The  philoso- 
phy of  law,  on  the  historical  side,  treats  of  the  various 
conceptions  of  law  which  are  found  among  the  foremost 
peoples;  on  the  philosophical  side,  properly  speaking,  it 
considers  the  various  possible  ideas  of  law  in  themselves, 
and  determines  the  degree  of  truth  peculiar  to  each  one. 
From  our  point  of  view,  the  historical  study  is  of  sec- 
ondary importance;  therefore  the  psychology  .of  peoples 
will  serve  only  as  a  preliminary  to  our  doctrine  of  law, 
or  as  they  say  in  England,  as  an  illustration  of  that  doc- 
trine, which  in  itself  is  independent  of  history.  To  give 
the  first  place  in  tliis  volume  to  historical  and  psychologi- 
cal considerations  would  be  to  confuse  what  is  accessory 
with  what  is  essential. 

We  have  no  liking  for  the  clean-cut  and  systematic 
classifications  in  which  the  advocates  of  the  race  theory 
take  such  satisfaction.  The  great  nations  of  Europe 
are  sisters  in  spirit  as  well  as  in  race;  no  one  of  them  can 

1  [This  chapter  i  =  introduction  to  Book  I  oi Fouillée' s  "L'Idée  Moderne 
du  Droit."  For  this  author  and  his  works,  see  the  Editorial  Preface.  — 
Ed.] 


2  NATIONAL   CHARACTERISTICS        [Ch.I 

be  confined  within  a  school  of  philosophy,  nor  imprisoned 
in  the  narrow  formula  of  an  exclusive  system.  Never- 
theless there  exist  among  the  nations  a  variety  of  tradi- 
tions and  tendencies.  The  history  and  the  psychology 
of  modern  nations  show  us,  if  we  are  not  mistaken, 
three  great  moments  in  the  evolution  of  the  idea  of  law. 
The  first  moment  is  a  still  confused  synthesis  of  the 
various  possible  conceptions  of  law  which  we  see  develop- 
ing almost  simultaneously  in  all  the  great  peoples.  In 
England,  for  example,  Hobbes  bases  law  upon  force  and 
interest,  Locke  upon  interest  and  liberty.  The  Carte- 
sian school,  represented  by  Spinoza,  admits  a  theory 
analogous  to  that  of  Hobbes;  the  French  philosophers 
of  the  1700s  uphold  at  one  time  the  law  of  force,  at 
another  the  law  of  interest,  at  still  another  that  of 
liberty  ;  Rousseau  expressly  bases  law  upon  the  equality 
of  liberties  which  is  realized  in  the  social  contract, 
understood  in  another  sense,  however,  from  that  in 
which  Hobbes  understood  it.  In  Germany,  Kant  and 
Fichte  place  law  on  a  foundation  of  moral  freedom  and 
the  reciprocity  of  social  restraint;  and  Schiller  and 
Goethe  are  animated  by  a  similar  spirit.  Hegel  leads 
the  way  back  to  the  cult  of  historical  necessity,  of  intel- 
lectual or  even  material  force,  of  success,  of  victory, 
and  of  genius,  and  his  successors  go  even  further;  but 
their  predominant  influence  has  not  hindered  the 
development  of  the  doctrines  of  Krause  and  Herbart, 
not  to  mention  the  latest  essays  of  Hermann,  Fichte, 
Trendelenburg,  and  Ulrici,  which  have  exerted  a  limited 
influence  on  Germanic  thought.  France,  on  the  other 
hand,  since  the  day  of  the  Constituants,  the  Girondists, 
the  Jacobins,  and  the  school  of  the  rights  of  man,  has 
had  in  our  own  century  her  theocratic  schools  represented 
by  De  Maistre,  De  Bonald,  and  Lamennais,  her  legitimist 
schools,  and  the  men  to  whom  the  name  of  "sentimental 


§1]        THE   PSYCHOLOGY  OF   PEOPLES  3 

clericals"  has  been  given,  that  is  to  say,  Chateaubriand, 
certain  of  the  romanticists,  the  neo-Catholics,  and  others 
besides.  Next  came  the  Saint-Simonians,  strongly  im- 
bued with  a  kind  of  historical  fatalism;  then  the  Posi- 
tivists,  for  whom  there  are  no  rights  properly  speaking, 
but  only  duties;  and  finally,  the  authoritarian  social- 
ists of  all  sects.  Even  Proudhon,  one  of  the  defenders 
of  the  idea  of  justice,  has  been  pleased  to  identify  right 
and  might  from  an  international  point  of  view.  To-day 
also,  we  have  among  us  more  than  one  supporter  of 
historical  law,  beginning  with  Taine.  From  this  array 
of  facts  what  conclusion  shall  we  draw?  One  only  is 
possible,  —  that  at  the  outset  the  various  aspects  of  law 
presented  themselves  at  almost  the  same  time  to  the 
various  peoples,  and  in  each  of  them  to-day  there  still 
exists  a  medley  of  conflicting  ideas. 

§  2.  Comparison  of  the  Three  Leading  Doctrines.  It 
is  none  the  less  true  that  since  the  beginning  of  the 
1800s,  a  kind  of  partition  and  analysis  has  taken  the 
place  of  that  synthetic  confusion  of  doctrines.  Only 
three  ideas,  more  and  more  distinctly  differentiated,  now 
hold  the  field.  The  first  two,  that  of  major  power 
(material  or  intellectual)  and  that  of  major  interest,  are 
reahstic  in  tendency;  the  third,  that  of  universal 
liberty,  equality,  and  fraternity,  is  idealistic.  Now, 
although  these  conceptions  always  coexist  in  every 
civilized  people  (among  the  philosophers  in  particular), 
is  there  not  actually  and  provisionally,  among  the  lead- 
ing nations  to-day,  an  inclination  to  order  their  con- 
duct, their  legislation,  and  their  politics  according  to  one 
rather  than  to  another  of  these  conceptions?  For  the 
psychology  of  peoples  and  for  history  this  is  the  real 
point  at  issue.  But  if  we  are  not  mistaken  there 
occurred  a  century  ago  an  event  of  capital  importance, 
which  by  its  intense  effect  on  the   course   of  history, 


4  NATIONAL   CHARACTERISTICS       [  Ch.  I 

and  by  the  scarcely  less  intense  reaction  which  it  pro- 
voked, could  not  fail  to  drive  the  various  nations  in 
different  directions,  leaving  their  ultimate  union  and 
reconciliation  to  the  future.  This  event  was  the  French 
Revolution.  The  English  contributed  to  it  gloriously, 
first  by  the  example  of  their  own  revolutions,  then  by 
that  of  their  political  constitutions,  and  finally  by  the 
liberal  theories  of  their  philosophers.  But  in  France,  as 
was  inevitable,  the  Revolution  took  on  a  general,  humani- 
tarian, and  social  character,  which  in  the  first  place  it 
could  not  have  had  in  England,  and  which  furthermore 
on  another  side  was  opposed  to  purely  national  con- 
siderations of  race,  language,  and  history,  by  which  the 
German  genius  commonly  seeks  to  justify  its  conquests. 
Unfortunately  the  Revolution,  provoked  as  it  was  by 
resistance  from  within  and  from  without,  compromised 
the  cause  of  universal  rights  by  putting  violence  into  its 
hands  as  a  weapon.  The  new  law  proclaimed  by  the 
Revolution,  and  the  violence  of  its  defenders,  could  not 
fail  to  provoke  a  reaction,  even  in  France.  This  reaction 
naturally  spread  to  the  other  nations,  in  which  the  wars 
of  the  Empire  kept  alive  a  feeling  of  righteous  defiance 
toward  the  spirit  of  the  Revolution,  as  interpreted  by 
Csesarism.  There  followed  two  necessary  consequences 
of  this  reaction.  First,  in  France,  the  idealistic  and  the 
realistic  theories  of  law  existed  side  by  side  in  extreme 
forms,  but  with  an  increasing  predominance  of  the 
former,  which  the  acceler-ation  of  the  democratic,  anti- 
feudal  and  leveling  movement  rendered  inevitable  among 
us.  Secondly,  in  England  and  Germany,  on  the  con- 
trary, the  reaction  against  the  revolutionary  movement 
was  for  the  most  part  stronger  than  the  movement 
itself,  as  is  proved  by  the  persistence  in  these  countries 
of  an  aristocratic  and  partly  feudal  régime,  and  the 
realistic  theory  has  therefore  ended  in  prevailing  over 


§2]        THE   PSYCHOLOGY   OF   PEOPLES  5 

the  idealistic  there,  in  our  own  day.  But  that  is  not 
all.  The  realistic  doctrine  being  itself  susceptible  of 
two  interpretations,  England  has  manifested  an  instinc- 
tive preference  for  one  and  Germany  for  the  other  —  a 
fact  which  may  be  explained  by  the  difference  in  their 
social  and  political  organization.  The  English  system 
is  industrialism,  as  described  by  Spencer  in  his  "Soci- 
ology"; the  German  system  is  what  the  same  writer 
designates  as  militarism.  To  the  English,  who  attained 
to  civilization  later  than  France  and  the  Latin  peoples, 
France  once  on  a  time  sent  over  her  Normans;  but 
she  could  not  induce  the  English  to  accept  the  Roman 
law  with  its  abstract  generalities,  nor  Catholicism  with 
its  spirit  of  authority.  Moreover,  thanks  to  her  geo- 
graphical position,  England  was  the  first  nation  of 
Europe  (after  Holland)  in  which  the  military  spirit  gave 
way  to  the  spirit  of  commerce  and  industry.  The 
mass  of  the  German  people,  attaining  civilization  still 
later,  and  unity  not  until  our  own  day,  have  necessarily 
retained  a  certain  quality  of  crudeness,  discernible 
even  in  their  science  and  their  philosophy;  "altruistic" 
instincts  are  newer  to  them  than  to  France  or  England, 
and  the  military  system  has  been  further  developed 
there  than  in  any  other  country.  Now,  the  idea  to 
which  industrialism  leads  is  explicitly  that  of  interest; 
the  idea  upon  which  militarism  rests,  at  least  implicitly, 
is  rather  that  of  power.  What,  then,  was  the  one  way 
logically  open,  fifty  years  ago,  to  an  industrial  but 
still  feudal  nation  in  a  state  of  reaction  against  the 
theoretical  or  practical  excesses  of  ideal  rights,  that  is  to 
say,  of  pure,  abstract  rights?  It  was  "utiUtarianism," 
properly  so-called.  And  what  way  was  open,  some 
years  ago,  to  a  military  and  feudal  nation  in  a  state  of 
reaction  against  the  same  excesses?  It  was  that  of 
preoccupation    with    material    and    intellectual    power, 


6  NATIONAL   CHARACTERISTICS       [  Ch.  I 

and  of  more  or  less  professed  respect  for  it.  Thus  the 
present  divergence  of  the  tendencies  among  jurists, 
politicians,  publicists,  and  philosophers  in  vogue  in  the 
various  countries,  was  historically  and  logically  inevit- 
able. This  difference  is  only  provisional,  however; 
and  we  can  already  foresee  the  time  when  equilibrium 
will  be  established,  in  the  mind  of  each  nation,  between 
ideas  of  power,  interest,  and  freedom.  It  is  none  the 
less  useful,  in  order  that  we  may  appreciate  the  value 
of  these  various  elements  of  the  same  idea,  to  trace  its 
at  once  historical  and  logical  development  in  the  prin- 
cipal modern  nations.  Later  we  shall  try  to  show  how 
the  realistic  and  the  idealistic  conceptions  may  be 
reconciled  in  one  synthetic  doctrine. 


§3]  THE  FRENCH  SPIRIT  7 

CHAPTER  II  * 
THE  FRENCH  SPIRIT  AND  THE  IDEA  OF  LAW 

NATIONAL  QUALIFICATIONS  FOR  SPECIAL  SERVICE  — 
THE  FRENCH  CHARACTER  —  THE  TRADITIONAL  IDEAL 
OF  FRANCE — "ENTHUSIASM"  AS  A  NATIONAL  TRAIT  — 
THE  RATIONAL  GOAL  OF  THE  FRENCH  WILL  —  MEANS  OF 
ACTION  —  CONTAGIOUS  INFLUENCE  OF  THE  FRENCH 
SPIRIT  —  A  NEW  TYPE  OF  PROSELYTISM — THE  FRENCH 
WILL  IN  ACTION  —  THE  INVINCIBLE  OPTIMISM  OF  THE 
FRENCH  —  FRENCH  POLITICS  ARE  NOT  UTILITARIAN  — 
THE  GENIUS  OF  OUR  LANGUAGE  —  FATALISM  NOT  AC- 
CEPTABLE TO  THE  FRENCH  —  GOOD  AND  BAD  EFFECTS 
OF  THE  DOCTRINE  OF  PROGRESS  —  NATIONAL  TRAITS 
REVEALED  BY  THE  RELIGION  OF  THE  FRENCH  —  LIBERTY 
THE  PRIMARY  BASIS  OF  LAW  —  LIBERTY  AND  EQUALITY 
ARE  INSEPARABLE  —  SPIRIT  OF  EQUALITY  PECULIAR  TO 
THE  FRENCH  —  MANIFESTATIONS  OF  THE  SPIRIT  OF 
EQUALITY  —  EQUALITY  MUST  STAND  SECOND  TO  LIBERTY 

—  POSSIBLE  MISAPPLICATIONS  OF  THE  IDEA  OF  EQUALITY 

—  DEFECTS    OF    THE    NATIONAL    CHARACTER  —  MEANS 
OF  REMEDYING  OUR  DEFECTS. 

§3.  National  Qualifications  for  Special  Service.  If  in 
the  past  the  French  were  too  prone  to  overrate  them- 
selves, they  are  to-day  perhaps  too  much  incHned  to 
self -depreciation.  Let  us  try  to  reestablish  a  proper 
consciousness   of   our   own   worth,    guarding,    however, 

*  [This  chapter  =  chapter  v,  Book  I,  of  Fouillée' s  "'L'iàée  Moderne  du 
Droit";  the  preceding  chapters,  omitted  in  this  translation,  deal  with 
legal  philosophy  in  Germany  and  in  England,  already  fully  covered  in 
Other  volumes  of  this  Series.  —  Ec] 


8  NATIONAL   CHARACTERISTICS      [  Ch.  II 

against  the  excesses  of  a  national  fatuity  which  would  be 
now  less  justifiable  than  ever.  Not  long  ago  most  of 
the  historians  and  philosophers,  those  of  England  and 
Germany  as  well  as  those  of  France,  gave  first  place,  in 
this  country  of  revolution  and  universal  suffrage,  to  the 
ambition  which  would  regenerate  the  civil  and  political 
order  by  basing  it  upon  pure  justice;  most  of  them 
granted  to  France  a  sort  of  historical  vocation  for  the 
establishment  of  a  reign  of  law  based  on  human  rights. 
One  of  the  greatest  opponents  of  the  "rights  of  man," 
one  of  the  writers  most  hostile  to  our  glory  and  our 
revolutionary  ideas,  Joseph  de  Maistre,  nevertheless 
recognized  that  France  "for  a  long  time  exerted  over 
the  nations  a  peculiar  kind  of  influence,"  which,  bearing 
specially  upon  problems  of  law,  upon  political  and  social 
questions,  might  well  be  called  "a  true  magistracy." 
A  well-known  German  historian,  one  of  those  who  have 
not  spared  our  country  in  these  later  years,  formerly 
represented  France  as  "having  received  the  mission  of 
revising,  from  time  to  time,  the  great  laws  of  European 
life  and  the  institutions  of  civil  and  poHtical  right 
which  in  the  beginning  it  had  helped  to  establish  on 
every  side."  If  this  traditional  mission  formerly  accorded 
to  France  could  have  been  accomplished  to  the  end,  it 
would  have  raised  France  to  the  position  of  lawgiver 
for  the  modern  nations,  tirelessly  seeking  a  truer  expres- 
sion of  justice.  Our  ambition  does  not  go  so  far  as  this, 
but  it  is  unquestionably  true  that  the  part  we  have 
taken  as  apostles  of  ideal  law  has  been  the  most  char- 
acteristic thing  in  our  history  up  to  the  present  time, 
and  indeed,  for  the  past  hundred  years,  in  our  philosophy 
also.  If  those  great  metaphysical  systems  of  the  uni- 
verse for  which  such  men  as  Diderot,  Alembert,  and 
Holbach  had  already  risen  in  France,  have  been  developed 
more  especially  by  Germany  in  this  century,  and  by 


§3]  THE   FRENCH   SPIRIT  9 

England  in  quite  recent  times,  the  great  social  concep- 
tions, on  the  other  hand  —  in  our  opinion  even  more 
useful  in  making  the  true  meaning  of  the  universe  itself 
comprehensible  ^  —  have  sprung  up  in  our  country  with 
an  exuberant  fecundity.  What  a  blossoming  forth  of 
ideas  and  theories  there  has  been  in  France  in  the  last 
hundred  years,  concerning  the  basis  of  law  and  all  its 
applications,  —  social,  political,  and  religious  renova- 
tion, the  right  of  property,  the  right  of  husband  and 
wife  in  the  family,  the  right  of  the  citizen  in  the  State,  — 
theories  now  profound,  now  strange,  now  monstrous, 
since  the  human  mind,  like  nature,  cannot  be  really 
fecund  without  sometimes  bringing  forth  monstrosities! 
In  art,  would  romanticism  have  inspired  everything 
with  new  life  if  its  bold  spirit  had  not  mingled  some 
extravagance  with  the  truth;  and  need  we  marvel  that 
social  science  in  our  country  has  also  had  its  touch  of 
romanticism?  Doubtless,  just  as  France  has  held  the 
highest  honors  in  this  kind  of  research,  it  has  also  stood 
in  the  greatest  peril,  that  of  seeing  original  theories 
degenerate  into  Utopias,  and  Utopias  into  violences; 
but  the  thinker  should  overlook  the  practical  incon- 
veniences from  which  the  present  generation  must  still 
suffer,  when  he  considers  the  speculative  services  rendered 
by  our  country  to  all  humanity.  The  suffering  which  is 
borne  with  courage  and  rewarded  by  results  is  more 
honorable,  after  all,  than  egoistic  repose.  For  nations, 
even  more  than  for  individuals,  to  think  and  to  strive 
is  to  suffer:   "Quaesivit  lucem,  ingemuitque." 

§  4.  The  French  Character.  Let  us  first  recall  in  a  few 
words  the  well-known  causes  which  have  contributed 
to  the  formation  of  our  character,  with  its  qualities 
and  defects  that  need  equally  to  be  understood  ;  let  us 
consider    climate,    temperament,    and    especially    race 

'  See  the  conclusion  of  our  "Science  Sociale  Contemporaine." 


10  NATIONAL   CHARACTERISTICS      [  Ch.  II 

and  historical  tradition.     The  geographical  situation  of 
France,    midway    between    the    north    and    the    south, 
where  all  varieties  of  climate  and  of  vegetation  unite 
their  principal  products,  from  the  pine  to  the  orange, 
is  congenial  to  the  development  of  a  spirit  that  shall 
not  be  narrowly  national  and  exclusive,  but  accessible 
to  widely  varied  and  general  influences.     To  this  type 
of  mind  add  a  temperament  likewise  midway  between 
the  extremes,  rather  nervous  and  sanguine  than  lym- 
phatic   and    bilious,    in   which    the    seriousness   of   the 
north  is  offset  by  the  vivacity  and  the  passion  of  those 
lands  of  sunshine  where  human  qualities  exhibit  a  more 
harmonious  equilibrium:    an  equable  temperament,  one 
might  say,  which  tends  to  unite  the  various  human  facul- 
ties in  equal  proportion,  and  to  give  due  emphasis  to 
each,  according  to  a  kind  of  natural  justice;   a  character 
at  the  same  time  intense  and  moderate,  not  easily  per- 
mitting any  single  passion,  caprice,  or  eccentricity  to 
clash   with   the  general   reason;    which   would    require 
in  all  things  conformity,  propriety,  and  elegance,  and 
which,  although  eager  for  novelty,  strives  nevertheless 
to    hold    steadfastly    to    "common    sense"    and    "good 
taste."     "The  Frenchman  has  a  dominating  predilection 
for  moral  beauty,"  wrote  Kant  in  1764.     "He  is  gracious, 
polished,  and  considerate.     He  bestows  his  confidence 
readily.  .  .  .     The  phrase  'a  well-bred  man  or  woman' 
can  properly  be  applied  only  to  one  who  possesses   the 
instinct  of  French  politeness.     Even  the  exalted  emo- 
tions,  numerous  as  they  are,   are  subordinate   in  the 
French  to  a  feeling  for  the  beautiful,  and  derive  their 
power  only  from  their  accord  with  the  latter  feeling." 
We  carry  even  to  excess  our  aversion  for  the  excessive. 
Our  effort  to  be  moderate  results  in  a  loss  of  force;   our 
endeavor  to  be  clear  in  a  loss  of  depth  ;   in  striving  too 
greatly  towards  the  beautiful,  properly  so-called,  and 


541  THE  FRENCH   SPIRIT  H 

towards  proportion,  we  diminish  our  sense  of  the  sublime, 
the  infinite,  and  the  incommensurable.     But  if  we  have 
not  always  as  great  depth  of  thought  as  the  Germans  or 
the  English,  it  sometimes  seems  that  we  have  greater 
breadth.     A  broader,  and  in  some  sort,  a  more  humane 
mind  is  what  the  two  prime  influences  which  we  have 
spoken  of  have  tended  to  develop  in  our  country;    but 
if  we  wish  to  have  a  more  exact  notion  of  our  national 
physiognomy,  we  must  recall  the  native  faculties  of  our 
race,   so  often   pointed  out  by  the  historians.     When 
our  neighbors  from  beyond  the  Rhine  go  back  so  readily 
to  India  and  even  farther  for  the  origins  of  their  "Ger- 
manic mission,"   we  may   perhaps  be  permitted  to  go 
back  as  far  as  the  Gauls,    in    whom    we   discover    an 
instinct  of  justice,  a  kind  of  juridical  faculty,  by  which 
even  antiquity  was  impressed.     Who  is  there  who  does 
not  know  Strabo's  portrait  of  the  Gallic  race,  in  which, 
even  thus  early,  it  is  stated  that  our  ancestors  readily 
espoused  the  cause  of  those  who  were  suffering  injustice, 
TOÎS  àhKeiddai  SoKoîcri?      According  to  Cœsar,  the  Gauls 
took  care  not  to  confuse  the  right  and  the  law,  "jus  et 
leges"  ;  and  Strabo  tells  us  that  the  Druids  were  already 
laying'great  stress,  in  their  teaching,  upon  the  right  and 
the  law,  "first  teaching  their  pupils  concerning  natural 
right,  and  then  concerning  constitutions  and  the  par- 
ticular laws  of  States."  ^ 

2  We  have  also  remarked  frequently  that  instinct  of  brotherhood 
which  made  our  ancestors  look  upon  self-sacrifice  as  a  supreme  distmction. 
Even  then  they  gave  the  name  of  brotherhood,  "brodeurde,  to  the 
associations  in  which  young  warriors,  attaching  themselves  to  some 
renowned  knight,  vowed  an  absolute  devotion  to  his  person  through 
life  and  death,  "mounting  the  funeral  pyre."  so  Polybius  and  Caesar 
tell  us  -beside  him  who  had  held  them  dear."  To  that  instmct  of 
brotherhood  was  finally  joined  a  certain  sentiment  of  equality  which 
at  times  annihilated  the  distance  between  classes  and  between  sexes. 
which  permitted  slave  or  woman  to  enter  the  college  of  Druids  by  free 
adoption,  allowed  the  daughter  a  free  choice  of  husband,  the  wife  per- 
sonal freedom,  property,  and  a  share  in  the  administration  of  common 
goods— the  first  suggestion  of  the  family  as  our   law  has  established 


12  NATIONAL   CHARACTERISTICS      [Ch.  II 

§  5.  The  Traditional  Ideal  of  France.  We  have  only 
to  recall  our  actual  historical  tradition  to  recognize  that 
when  Gaul  became  France,  it  remained  faithful  in  a 
general  way,  through  good  and  bad  qualities  alike,  to 
the  hereditary  genius  of  its  race.  History  is  a  kind  of 
biography  of  nations  which  serves  merely  to  trace  their 
psychological  type  through  the  ages,  as  a  personal 
biography  reveals  in  action  the  character  of  an  indi- 
vidual. We  have  been  a  civilized  nation  longer  than  our 
neighbors,  Germany  and  England  —  a  condition  which 
has  its  advantages  and  its  disadvantages.  It  was  still 
very  early  when  Gaul  embraced  Christianity,  the  doc- 
trine of  justice  and  fraternity.  Later,  if  chivalry 
received  its  greatest  development  in  France,  enveloping 
it  with  all  its  glory,  it  was  because  knighthood,  devoting 
itself  wholly  to  the  service  of  those  unable  to  defend 
their  own  rights,  to  the  poor,  the  orphans,  the  women, 
personified  with  high  courage  a  tradition  of  generosity 
and  of  devotion  to  justice.  If  the  sovereigns  of  France 
more  than  all  others,  in  the  midst  of  unixersal  despotism, 
professed  to  be  the  "refuge  of  the  oppressed,"  and  the 
"supreme  justiciaries,"^  it  was  doubtless  because,  in  the 
eyes  of  the  French  people,  the  noblest  use  of  power 
seemed  to  be  the  protection  of  the  rights  of  the  weak. 
If  it  was  in  France  that  the  noble  madness  of  the  Crusades 
had  its  beginning,  preached  first  to  the  people  by  a  man 

it  in  France.  These  sentiments  of  equality  sprang  from  an  already  keen 
love  of  liberty,  added  to  a  still  vague  conception  of  the  inherent  value 
of  the  human  personality.  One  manifestation  of  this  conception  was 
the  firmness  of  the  Gallic  faith  in  a  personal  immortality.  The  Gauls 
believed  that  persons  and  personal  attachments  were  of  such  inestimable 
value  that  they  must  survive  even  death  itself;  death  is  only  "a  midway 
stage  in  a  long  life."  The  ancients,  as  we  know,  kept  going  back  inces- 
santly to  the  strength  and  importance  of  this  belief,  which  in  practice 
inspired  an  indomitable  courage  and  contempt  of  death:  "Non  paventi 
funera  Galliae." 

'  See,  in  T aine' s  "Ancien  Régime,"  the  chapter  in  which  he  explains 
seignioral  and  royal  privileges,  pp.  14fî. 


15]  THE   FRENCH  SPIRIT  13 

of  the  people,  then  winning  lords  and  kings,  thereafter 
to  draw  all  Europe  in  its  train,  it  was  because  here  again 
it  was  a  question  of  giving  aid  to  their  brothers  who  had 
been  wronged  in  their  faith,  in  their  liberty,  and  in  their 
rights.  If  France  herself,  when  threatened  by  the  Eng- 
lish, saw  rise  up  from  her  midst  not  only  heroes,  such  as 
all  peoples  have,  but  heroines,  whose  sweet,  strong  faces 
are  unmatched  in  the  history  of  other  nations,  it  is 
because  in  the  land  of  Jeanne  d'Arc,  as  in  ancient  Gaul, 
the  traditional  honor  of  consecrating  oneself  to  the 
cause  of  justice  was  no  more  denied  to  woman  than  to 
man,  and  no  one  was  refused  the  supreme  joy  of  heroism 
sacrificing  itself  to  the  right.*  Finally,  in  our  own  cen- 
tury, history,  dwelling  on  less  remote  examples,  portrays 
us  as  a  nation  which  has  resented  the  injustices  which 
other  nations  have  suffered,  as  much  as,  sometimes  even 
more  than,  those  which  it  has  suffered  itself,  —  a  land 
where  the  multitude,  sadly  wanting  in  foresight,  was 
much  less  ardent  in  looking  to  its  own  affairs  than  to 
the  rights  of  Poland,  Greece,  Ireland,  and  Venice,  in 
their  times  of  oppression.  The  other  nations  are  well 
aware  of  this,  and  it  must  be  acknowledged  that  when 
they  have  been  in  need  of  active  sympathy  or  disinter- 
ested help,  they  have  not  turned  by  preference  to 
England  or  to  Germany,  but  to  the  country  which  first 
proclaimed  not  only  the  rights  of  man,  but  the  rights  of 
nations,  and  which  is  always  more  than  ready  to  judge 

*  "If  any  thought  were  given  to  the  encouragement  of  the  national 
spirit,"  remarked  Kant,  "women  in  France  might  have  a  more  powerful 
influence  than  anywhere  else  over  the  actions  of  men,  if  they  would  but 
urge  them  on  to  noble  deeds.  It  is  a  misfortune  that  the  lilies  do  not 
spin."  ("Des  Caractères  Nationaux,"  p.  305.)- — ^  Jeanne  d'Arc,  it  is 
true,  did  better  than  to  "spin."  But  it  is  certain  that  the  Frenchwoman 
should  have  an  education  more  worthy  of  her  influence.  To  quote  from 
Kant  again,  "The  object  to  which  the  national  merits  and  virtues  of  the 
French  are  especially  related,  is  woman."  And  he  added:  "I  would 
not  have  said,  for  all  the  wealth  in  the  world,  what  Rousseau  dared  to 
maintain,  that  a  woman  is  never  anything  but  a  grown-up  child." 


14  NATIONAL   CHARACTERISTICS      [  Ch.  Il 

others  by  itself.  This  preoccupation  with  justice  for 
all  is  a  tradition  of  France,  which  she  has  often  carried 
to  an  unfortunate  forgetfulness  of  herself  and  of  her  own 
legitimate  interests.  Our  history,  intermediary  between 
the  Graeco-Roman  and  the  Anglo-Germanic,  the  only 
history  interwoven  with  that  of  all  the  great  nations, 
the  only  history  perhaps  which  thus  forms  a  perfect, 
unified  whole,  is  especially  characterized  by  the  prepon- 
derant part  which  it  has  taken  in  the  development  of 
modern  humanity,  in  the  progressive  initiation  of  other 
peoples  into  a  new  conception  of  law.  Germany's  ideal 
was  above  all  —  at  least  in  the  beginning  —  religious 
and  metaphysical;  England's  was  especially  political 
and  economical;  the  ideal  of  France  is  essentially  social 
and  humanitarian. 

§  6.  ''Enthusiasm''  as  a  National  Trait.  Let  us  now 
pass  from  the  causes  which  influenced  the  formation  of 
our  national  character  to  the  psychological  analysis  of 
this  character  itself.  We  shall  see  that  our  most  impor- 
tant faculties,  like  those  of  other  nations,  can  be  deduced 
one  from  another,  and  that  they  form  a  system  analo- 
gous to  an  organism. 

In  nations  as  in  individuals,  the  thing  which  espe- 
cially determines  character  is  the  faculty  which  controls 
conduct,  namely,  the  will.  If  we  would  appreciate  the 
will  of  a  people  at  its  just  value,  we  must  examine  suc- 
cessively three  things:  its  degree  of  force,  its  habitual 
object,  and  its  means  of  action.  Now,  to  consider  first 
the  living  force  of  the  will  apart  from  its  object,  the 
psychologist  finds  the  English  people  exhibiting  a  greater 
tenacity  and  patience,  the  Germans  a  more  rugged  energy, 
the  French  more  spontaneity  and  impulsiveness.  Enthu- 
siasm has  been  included  among  the  traits  characteristic 
of  the  French  by  all  observers,  and  enthusiasm  is  only 
the  spontaneous  impulse  of  the  will  towards  an  ideal  by 


[ 


§6]  THE  FRENCH  SPIRIT  15 

which  it  is  strongly  stirred.  In  France  it  is  the  social 
ideal,  above  all  else,  which  has  stirred  us.  "France 
is  the  land  of  enthusiasm,"  said  Kant  in  his  work  on 
the  characteristics  of  the  various  nations.  Madame 
de  Staël  finished  her  "Germany"  with  the  well-known 
apostrophe:  "O  France,  if  the  day  should  ever  come  when 

enthusiasm   shall  be  extinct  upon  your  soil ,"   an 

apostrophe  which  the  imperial  censorship  hastened  to 
suppress,  as  if  despotism  understood  that  enthusiasm  for 
what  is  best  is  indeed  the  primary  liberty  for  a  nation's 
soul,  and  the  fruitful  germ  of  all  other  liberties.  John 
Stuart  Mill,  in  his  "Memoirs,"  also  mentions  enthusiasm 
as  one  of  the  qualities  distinguishing  the  elevated  French 
genius  from  the  sometimes  too  sersàle  commonplaceness 
of  English  or  American  Positivism.^  Enthusiasm  in  a 
nation  manifests  a  certain  freedom  from  lower  preoccu- 
pations and  material  concerns,  and  in  consequence  a 
certain  moral  freedom  of  mind.  This  should  not  be  con- 
fused with  that  mere  ardor  of  passion,  that  hot-blood ed- 
ness,  which  some  of  the  southern  races  exhibit  in  their 
pursuit  of  what  they  covet,  not  discriminating  between 
what  is  gross  and  inferior  and  what  is  superior  and  noble. 
France,  too,  has  had  her  hours  of  blind  and  odious 
passion,  but  quite  different  is  enthusiasm  properly  so- 
called  ,  of  which  she  has  more  than  once  given  example,  and 
to  which  she  has  owed  sometimes  such  wise  reforms, 
sometimes  such  sorry  deceptions.  Doubtless  one  feels  in 
enthusiasm  an  emotion  of  the  heart  as  well  as  an  impulse 
of  the  will,  but  what  rouses  the  will  and  stirs  the  heart 
is  thought;  it  is  the  mind's  conception  of  the  beautiful 
or  the  just  that  gives  birth  to  true  enthusiasm,  —  an 
intellectual  flame,  shedding  light  on  its  own  path  and 

'  Heinrich  Heine,  rightly  regarding  Paris  as  the  very  heart  of  France, 
greeted  her  as  "the  city  of  equality,  of  enthusiasm,  and  of  martyrdom, 
the  city  of  redemption,  which  has  already  suffered  so  greatly  for  the 
temporal  deliverance  of  mankind."     ("La  France.") 


16  NATIONAL   CHARACTERISTICS      [Ch.  II 

the   paths   of   others,    because   it   is   idea    and    passion 
in  one. 

§  7.  The  Rational  Goal  of  the  French  Will.  If  we  are 
to  estimate  the  will  of  a  people  at  its  true  value,  we 
must  not  confine  ourselves  to  a  consideration  of  the  will 
in  itself  or  of  its  degree  of  energy;  we  must  examine 
especially  the  object  which  it  habitually  has  in  view. 
From  this  second  standpoint  the  French  nation  exhibits 
a  truly  distinctive  character.  In  the  golden  hours  of 
the  history  of  France,  the  object  of  the  national  will  has 
been  confounded  with  the  object  of  reason  itself,  for 
it  is  on  behalf  of  general  and  universal  ideas  that  it  has 
been  most  passionately  aroused.  In  our  country,  we 
do  not  want  merely  the  liberty  and  the  rights  of  French- 
men, but  "rights  of  man";  our  reason  always  tends  to 
generalize  the  object  towards  which  our  will  is  directed. 
Hence  the  characteristic  feature  of  our  national  physi- 
ognomy is  the  union  of  these  two  things  which  at  first 
glance  are  so  opposed  :  the  spirit  of  enthusiasm  and  the 
spirit  of  rationalism.  Cavour  said  that  the  French  genius 
was  logic  in  the  service  of  passion.  It  would  perhaps  be 
truer  to  say  that  it  is  passion  in  the  service  of  logic; 
Cavour  was  indicating  only  the  defect  of  our  quality 
and  the  excess  to  which  it  may  be  carried.  But  equally 
often  we  offend  by  an  excess  of  abstract  logic.  Have 
we  not  often  been  reproached,  on  the  part  of  the  English, 
with  a  taste  and  a  mania  for  generalizing!  The  idea  of 
utility  and  the  idea  of  power,  which  the  empiricism  of 
certain  peoples  takes  up  most  readily,  have  none  of  this 
universal  character;  but  the  French  genius,  rightly  or 
wrongly,  always  conceixes  of  justice  as  an  idea  of  infinite 
scope.  Whatever  may  be  the  excesses  of  this  tendency, 
it  must  be  acknowledged  at  least  that  a  will  which  pos- 
sesses the  quality  of  generality  will  also  possess  that  of 
generosity.     This    it    is    that    necessarily    explains    the 


§7]  THE   FRENCH   SPIRIT  17 

existence  among  the  French  of  that  faculty  of  disinter- 
estedness, carried  to  the  point  of  Utopia,  which  has 
impressed  all  historians,  all  psychologists.  John  Stuart 
Mill  saw  in  that  faculty  the  chief  nobility  of  our  char- 
acter; Spencer,  more  faithful  than  Mill  to  Bentham, 
found  in  it  a  cause  for  reproach;  the  same  quality  led 
Fichte  to  hold  us  up  as  an  example  to  his  compatriots. 
More  recent  writers  who  have  treated  of  the  "psychology 
of  peoples,"  Gneist  and  Lazarus,  find  in  us  the  same 
tendency  to  detach  ourselves  from  our  own  interests  in 
the  furtherance  of  a  universal  conception,  sometimes 
that  of  a  rational  being.  Such  a  tendency  has  contrib- 
uted not  a  little  in  these  later  centuries  to  the  develop- 
ment of  that  "classical  spirit"  towards  which  Taine  has 
evinced  such  severity,  and  in  which  he  finds  one  of  the 
principal  explanations  of  the  French  Revolution.  We 
must  guard  against  carrying  Taine's  thought  too  far, 
true  though  it  may  be  in  itself,  and  also  against  seeing 
in  the  revolutionary  impulse  only  a  classical  taste  for 
generalit}^  for  abstraction,  and  for  rational  symmetry; 
classical  habits  of  mind  would  scarcely  account  for 
such  a  social  upheaval.  Moreover,  this  love  of  anything 
which  is  general  and  applicable  to  all  humanity  seems 
to  have  itself  had  for  its  principle,  in  the  eighteenth 
century,  keen  intuition  and  rational  love  of  liberty. 
Indeed  it  is  irrational  to  love  liberty  for  one's  own  sake, 
since  in  a  society  in  which  all  the  members  are  solidary, 
one  cannot  have  true,  complete,  and  absolute  liberty  if 
the  others  do  not  have  it,  if  they  are  not  in  this  respect 
one's  equals.  Suppose,  for  example,  that  a  single  nation 
of  the  globe  should  adopt  and  practise  all  the  rules 
which  insure  freedom  of  labor,  of  exchange,  and  of 
association  ;  if  these  rules  do  not  exist  for  other  nations, 
will  not  economic  combinations  finally  arise  of  a  nature  to 
prevent  the  desired  result  and  to  militate  against  freedom 


18  NATIONAL   CHARACTERISTICS     [Ch.  II 

itself?  The  relations  existing  among  the  citizens  in 
each  nation  imply  a  similar  solidarity;  there  cannot  be 
freedom  of  capital,  for  example,  without  freedom  of 
labor,  and  vice  versa.  In  our  century,  in  a  word,  the 
philosopher  and  the  economist  with  a  general  outlook 
find  the  independence  of  one  part  of  humanity  bound  up 
in  the  end  with  that  of  the  rest.  Why  hold  it  against 
France  that  she  has  had  a  spontaneous  understanding  of 
that  universality  which  ought  to  belong  more  and  more 
to  liberty?  Why  reproach  France  with  having  perceived 
that  from  the  point  of  view  of  the  philosopher,  the 
rights  of  the  Frenchman  cannot  exist  without  the 
rights  of  man  in  general?  We  ought  to  love  liberty  for 
the  sake  of  others,  as  well  as  for  its  own  sake.  It  is 
thus  that  it  acquires,  like  reason,  a  universal  bearing; 
it  is  thus  that  it  becomes  equality. 

§  8.  Means  of  Action.  A  concern  for  general  and 
disinterested  ideas,  and  a  freedom  from  narrow,  personal 
views,  were  the  most  striking  characteristics,  taking  all 
the  facts  together,  of  that  Revolution  in  which  the 
genius  of  France  discovered  its  own  being,  and  the  effect 
of  which  is  to-day  the  object  of  systematic  efforts  of 
detraction.  This  concern  is  what  made  possible  that 
night  of  liberality,  the  fourth  of  August,  when  all  the 
groups  within  the  nation,  the  third  estate,  the  clergy, 
the  nobility,  voluntarily  renounced  their  privileges  in  the 
name  of  Law,  acting  under  the  influence  of  an  enthu- 
siasm for  liberty  so  powerful  that  the  egoism  of  any 
individual  member  of  the  assembly  was  lost  in  the 
general  disinterestedness.  De  Sybel  himself,  unjust 
though  he  was  as  historian  of  the  French  Revolution, 
could  not  help  giving  homage  to  that  act  of  renunciation 
on  the  part  of  an  assembly  into  which,  veritably,  the 
spirit  of  the  nation  as  a  whole  had  been  breathed.  "It 
was  for  all  time,"  he  said,  "that  the  French  assembly, 


§81  THE  FRENCH  SPIRIT  19 

on  the  night  of  August  the  fourth,  won  freedom  of  labor 
and  equaHty  of  rights."  ^  Renan,  who  also  exhibits  a 
certain  partiality  for  the  Germanic  spirit,  says  in  com- 
paring Germany  and  France,  "Germany  does  not  do 
anything  disinterested  for  the  rest  of  the  worlds  .  .  . 
The  rights  of  man  are  surely  something,  too;  these  were 
established  by  our  eighteenth  century  and  our  Revolu- 
tion."* Janet,  in  his  "Philosophie  de  la  Révolution 
Française,"  is  right  in  saying  that  "the  Protestant 
revolutions  were  more  local  than  otherwise;  only  that 
of  America  was  of  a  more  general  and  abstract  character. 
It  was  concerned  with  the  same  causes  as  the  French 
Revolution,  and,  like  the  latter,  received  the  impress  of 
the  spirit  of  the  eighteenth  century.  The  two  should 
not  be  separated,  inasmuch  as  France  had  so  large  a 
share  in  the  success  of  the  American  Revolution." 

Despite  the  resemblances  between  the  American  spirit 
and  the  French  spirit,  we  believe  that  the  two  revolu- 
tions manifested  differences  which  are  even  more  pro- 
found. What  relation  the  matter  of  taxes  and  the  tea 
episode  bore  to  the  revolt  of  the  United  States  is  well 
known.  And  what  contrasting  methods  of  procedure  did 
the  two  peoples  exhibit  when  in  formulating  their  consti- 
tutions they  came  to  setting  forth  the  rights  of  citizens! 
The  American  method  was  to  go  from  state  to  state  in 
quest  of  the  principles  which  each  on  its  own  account 
acknowledged  in  advance.  These  were  summed  up  and 
generalized  as  much  as  possible;  and  finally  the  whole 
formula  which  the  federation  was  to  accept  was  drawn 
up    a    posteriori,   with   equality,   a   mere   consequence, 

«  "Histoire  de  l'Europe  pendant  la  Révolution  Française,"  translated 
by  Mlle.  Bosquet. 

1  The  real  glory  of  Germany,  in  our  view,  is  rather  that  she  thinks  of 
disinterested  things  in  the  philosophical,  and  especially  in  the  meta- 
physical, domain. 

«  "La  Réforme  Intellectuelle,"  preface,  Paris,  1872. 


20  NATIONAL  CHARACTERISTICS      [Ch.  II 

placed  rather  awkwardly  before  liberty.  It  is  too  soon 
to  judge  whether  or  not  that  is  the  best  method;  but 
it  is  true  beyond  question  that  the  Americans  were, 
and  still  are,  filled  with  the  empirical,  practical  spirit  of 
the  English,  which  in  general  thinks  more  about  itself 
than  about  humanity.  The  English  draw  up,  not 
declarations  of  rights,  but  what  they  call  "petitions."  ^ 
In  England,  when  the  laborers  themselves  are  demand- 
ing reforms,  they  confine  ordinarily  their  exertions  to 
their  own  interests  or  those  of  their  comrades,  their 
workshop,  or  their  city,  and  seldom  think  of  generalizing 
or  of  demanding  reforms  of  principle.  So  the  questions 
have  for  them  only  a  local  bearing,  while  for  the  French 
laborer  they  become  not  only  social  questions,  but 
actually,  with  increasing  generality  and  distressing  pre- 
cipitation, the  social  question  itself.  Neither  have  the 
Germans,  in  their  attempts  at  independence,  displayed 
such  disinterestedness  of  will,  or  enthusiasm  of  reason,  as 
that  which,  in  spite  of  its  numerous  illusions,  secured  to 
the  France  of  the  1700s  such  high  rank  in  the  opinion 
of  thinkers.  "In  the  midst  of  the  philosophy  and  the 
poetry  of  Germany,  the  people  remained  immured  in 
density  of  thought,  and  if  they  sometimes  clashed  with 
the  authorities,  the  question  was  always  one  of  the 
most  sordid  realities,  material  discomforts,  oppressive 
taxes,  customs,  tolls,  fines  for  poaching,  etc.,  etc.;  in 
practical  France,  on  the  other  hand,  the  people,  inspired 
and  guided  by  the  writers,  strove  more  often  in  the  cause 

»  There  is  some  truth  in  Heine's  sally:  "It  is  in  the  narrowest  corpora- 
tion spirit  that  the  English  demand  their  liberty,  that  is,  their  liberties 
secured  by  charters  and  franchises.  French  liberty,  the  liberty  made 
for  human  kind,  the  liberty  which  the  whole  universe  will  one  day  possess, 
with  reason  for  a  title,  is  essentially  and  inherently  odious  to  the  English. 
They  understand  none  but  English  liberty,  Anglo-historic  liberty, 
patented  for  the  use  of  his  subjects  by  His  Majesty  the  King  of  Great 
Britain,  and  based  on  some  ancient  law,  perhaps  of  the  time  of  Queen 
Anne."     ("La  France,"  p.  205.) 


§81  THE   FRENCH   SPIRIT  21 

of  intellectual  interests,  of  philosophical  ideas."  Put- 
ting all  exaggeration  aside,  the  fact  that  the  testimony 
from  these  varied  sources  leads  to  the  same  conclusion 
seems  to  justify  in  large  measure  the  words  which 
Michelet  addressed  in  high-minded  pride  to  the  detrac- 
tors of  our  fatherland  and  our  Revolution,  and  which 
might  well  be  addressed  to  them  again  to-day:  "If  we 
should  bring  together  all  that  each  nation  has  expended 
in  blood,  in  wealth,  and  in  every  kind  of  effort  on  behalf 
of  those  unselfish  things  which  are  profitable  only  to 
the  world  at  large,  France's  pyramid  would  rise  to  the 
very  sky;  and  the  accumulation  of  your  sacrifices,  O 
nations,  great  as  you  are,  would  no  more  than  reach 
the  knee  of  a  child."  ^^ 

War  itself,  the  delight  of  our  ancestors  of  Gaul,  has 
never  been  truly  popular  in  France  except  as  it  has  been 
ennobled  by  some  disinterested  idea  to  be  supported, 
some  great  cause  to  be  defended  —  honor,  liberty,  or 
right.  We  do  not  mean  to  say  that  all  of  our  wars 
have  been  good  and  just;  far  from  it.  But  they  have 
been  sincerely  popular  only  when  they  ha\e  involved, 
rightly  or  wrongly,  some  general  consideration.  It  was 
an  able  despot  who  made  the  significant  remark  that 
"France  is  the  only  country  that  makes  war  for  the 
sake  of  an  idea,"  and  our  rulers  understood  this  so  well 
that  they  always  concealed  the  ambitious  character  of 
their  military  policies  beneath  some  idea  of  devotion  to 
common  freedom,  of  emancipation  of  peoples,  of  succor 
for  oppressed  nations.  They  knew  that  the  real  "soul 
of  the  people"  would  not  long  be  with  them  if  they  did 
not  lure  it  along  in  the  name  of  a  general  idea. 

§  9.  Contagious  Influence  of  the  French  Spirit.  This 
habit  of  disinterestedness  in  the  popular  will,  itself  pro- 
duced by  the  generality  of  its  object,  in  its  turn  makes 

»o"Le  Peuple,"  p.  71. 


22  NATIONAL   CHARACTERISTICS      [Ch.  II 

clear  to  the  eyes  of  the  psychologist  the  somewhat  con- 
tagious character  of  our  national  spirit,  its  power  to 
spread  rapidly  from  nation  to  nation.     It  has  lately  been 
observed  that  the  very  universality  of  our  desires  shows 
that  we  desire  not  only  for  ourselves,  but  also  for  all 
others,  and  thus  desire  equality.     We  have  fallen  heir, 
moreover,   to   a   portion  of   that  Stoic,    that    Roman 
genius,   which   was   perpetually   translating   itself   into 
legislation.     We  like  to  make  legislators  of  ourselves, 
especially  in  the  interest  of  humanity,  quite  as  if  we  were 
already  members  of  the  "universal  republic,"  or  as  if 
Kant's  celebrated  formula  for  duty  and  law,  inspired 
by  Rousseau,  were  the  translation  into  abstract  form  of 
the  procedure  most  familiar  to  the  French:  So  act  that 
the  rule  of  your  action  may  he  a  lata  for  every  reasonable 
free  being,  as  if  you  were  at  once  both  citizen  and  law-maker 
in  the  society  of  human  kind.     There  is  scarcely  any  need 
for  remarking  how  mistaken  and  dangerous  this  proce- 
dure may  be  from  a  practical  point  of  view,  what  a  risk 
one  runs  of  going  too  fast  and  pitching  headlong  into 
inapplicable  generalities.     It  is  none  the  less  true  that 
the  rational,  universal  will  has  naturally  an  expansive, 
sympathetic  power  by  which  other  wills  are  swept  along. 
The  necessary  consequence  of  this  psychological  law  is 
that  in  desiring  for  others,  we  have  often  led  others 
to  desire  as  we  do.     Foreign  nations,    recognizing   the 
impersonality  of  our  views  and  their  value  to  them  as 
well  as  to  us,  naturally  felt  that  in  political  and  social 
questions  the  affairs  of  France  were  the  affairs  of  all  the 
world.     Hence  the  development,  the  successes,  and  the 
excesses  of  our  proselytism,  which  is  at  the  same  time 
enthusiastic    and    rational,    although    sometimes    irra- 
tional;   which  cannot  be  persuaded  to  limit  either  the 
scope  or  the  application  of  its  truths;  which  in  all  things 
requires  harmony  between  principles  and  results,  and 


§9 J  THE   FRENCH   SPIRIT  23 

the  frequently  chimerical  extension  of  these  results  to 
all  the  earth;  and  which,  finally,  does  not  expect  to  find 
satisfaction  or  repose  or  the  fulfillment  of  its  desires  except 
in  the  accord  of  every  mind  with  all  other  minds,  of 
every  nation  with  all  other  nations;  in  a  word,  in  that 
universal  brotherhood  from  which  we  are  still  so  far 
distant. 

§  10.  A  New  Type  of  Proselytistn.  Joseph  de  Maistre, 
the  ardent  partisan  of  the  old  régime,  despaired  of  this 
essentially  democratic  influence,  all  the  more  invasive 
by  reason  of  the  readiness  of  others  to  accept  it.  "Two 
peculiar  traits  distinguish  you  from  all  the  other  peoples 
in  the  world,"  he  said  to  the  French  of  his  own  time,  "the 
spirit  of  association  and  the  spirit  of  proselytism."  He 
applied  to  us  that  prophetic  saying:  "Every  word  from 
tliis  nation  works  a  spell";  and  again  he  commented  on 
the  inability  of  the  French  to  live  isolated.  "If  you  would 
restrict  your  activities  to  yourselves,  you  would  at  least 
be  left  in  peace;  but  the  propensity,  the  necessity,  the 
mania,  for  extending  them  to  others  is  the  most  salient 
trait  of  your  character.  One  might  say  that  you  are 
the  very  embodiment  of  this  trait.  Each  nation  has  a 
mission;  this  is  yours.  The  least  opinion  which  you 
give  to  the  world  is  a  battering-ram  driven  by  thirty 
millions  of  men,  —  a  mysterious  force,  inadequately 
explained  up  to  the  present,  and  as  potent  for  good  as 
for  evil."  If  Joseph  de  Maistre  was  unable  to  explain 
this  force,  it  was  because  he  saw  in  it,  primarily,  energy 
of  passion  rather  than  a  more  or  less  well  ordered,  simul- 
taneous development  of  liberty  and  reason  —  two  facul- 
ties which  are  in  the  most  perfect  accord,  since  they  are 
the  most  human.  Nor  did  he  bring  out  the  new  and 
characteristic  feature  of  French  proselytism  which  might 
have  been  deduced  naturally  from  the  predominating 
faculties  of  the  nation.     While  it  was  religion  alone  which 


24  NATIONAL   CHARACTERISTICS      [Ch.  II 

elsewhere  throughout  the  world  had  awakened  the  spirit 
of  propaganda,  in  France  it  was  the  idea  of  rights 
which  aroused  it.  It  was  a  question  of  disseminating 
not  only  beliefs  which  transcended  reason,  but  also 
truths  derived  from  reason.  For  religious  apostleship 
France  substituted  social  proselytism,  or  to  put  it  more 
exactly,  republican  proselytism. 

What  has  added  to  the  influence  of  the  French  upon 
other  nations  is  the  facility  (through  which  it  often 
comes  to  grief)  with  which  this  nation  shakes  off  inter- 
national hatreds,  overlooks  traditional  grievances,  and 
protects  sons  from  the  wrath  inspired  by  their  fathers. 
It  is  temperamentally  and  intellectually  hostile  to  the 
idea  of  reversibility,  of  solidarity  between  widely  sepa- 
rated generations;  it  repels  this  idea  in  the  name  of 
humanity  as  well  as  in  the  name  of  law  ;  it  sanctions  with 
difficulty  the  doctrine  of  original  sin,  and  the  maledic- 
tions and  national  grudges  which  are  passed  down  to 
the  twentieth  generation.  The  Germans,  for  their  part, 
still  reproach  us  for  what  they  endured  from  us  in  the 
time  of  Louis  XIV  or  even  in  the  Middle  Ages;  they 
extend  their  imprecations  to  the  entire  race,  which  they 
readily  personify  for  the  purpose  of  cursing,  of  hating,  of 
exterminating  it.  Heinrich  Heine  predicted  as  much. 
"A  day  will  come  when  you  will  be  reproached  for  the 
slaying  of  Conrad  by  the  Duke  of  Anjou,  and  his  death 
will  be  avenged."  The  Frenchman  does  not  under- 
stand these  erudite  quarrels.  Preoccupied  especially 
with  individuals,  he  does  not  naturally  ascribe  their 
faults  to  nations  and  races;  he  is  ready  to  sympathize 
candidly  with  sons  of  former  enemies,  however  unready 
they  themselves  may  seem  to  discard  old  animosities. 
He  can  scarcely  comprehend  how  any  one,  using  science 
and  history  as  a  pretext,  should  wish  to  substitute  a  pop- 
ular  tradition  or  a  race  rivalry  for  human  rights;    he 


§10]  THE   FRENCH  SPIRIT  25 

insists  upon  individual  responsibility  as  a  consequence 
of  freedom.  He  prefers  to  retaliate  by  leading  others  to 
desire  what  he  desires  —  a  chimera,  perhaps,  but  a 
noble  one,  after  all. 

§  11.  Tlie  French  Will  in  Action.  To  have  an  ardent 
desire,  or  to  strive  towards  a  lofty,  universal  object, 
is  unquestionably  not  enough;  one  must  also  have  the 
power  to  act.  This  is  the  third  point  of  view  from 
which  we  must  consider  our  national  characteristics  if 
we  would  estimate  them  exactly.  We  must  judge  by 
what  they  accomplish  both  in  the  invention  of  method 
and  in  practical  application.  The  intensest  desires  do 
not  always  bring  the  best  results;  we  have  far  too  often 
exemplified  the  truth  of  this  by  our  errors  and  our 
failures.  Yet,  in  this  same  field  of  application  and  actu- 
ality, can  it  be  denied  that  the  French  have  exhibited  at 
times  a  will  as  efficacious  in  action  as  enthusiastic  in  its 
inspiration?  Our  ideas  of  right,  after  all,  have  actually 
passed  into  our  codes,  and  thence  into  the  codes  of 
modern  nations;  even  the  English  gave  our  civil  code  to 
the  island  of  Ceylon,  and  the  Italians  took  theirs  from 
us  entire.  So  it  must  be  conceded  that  the  French 
people  have  not  only  been  generous  theorists,  but  have 
also  had,  after  a  manner  of  their  own,  a  certain  practical 
genius.  However,  in  the  application  of  their  theories 
they  have  differed  from  their  neighbors,  and  have 
too  often  shown  the  defects  of  their  qualities.  The  Eng- 
lish and  the  Germans,  instead  of  asking  for  all  possible 
liberties  at  once,  wisely  ask  for  a  first,  which  shall  be 
the  means  of  obtaining  a  second;  they  wish  above  all 
to  possess  a  series  of  means,  a  combination  of  forces  and 
interests;  they  fix  their  aspirations  particularly  upon 
the  successive  links  of  this  chain,  and  patiently  secure 
them  one  after  the  other.  The  liberty  which  can  be 
separated  into  fragments  does  not  exist  for  the  French 


26  NATIONAL   CHARACTERISTICS      [Ch.  II 

people;  they  impatiently  demand  it  in  its  entirety. 
Less  concerned  with  the  means  than  with  the  end  and 
the  idea  which  they  wish  to  realize,  they  rush  along  to 
that  end  with  an  impulsiveness  too  often  blind,  and 
thereby  overlook  many  intermediary  considerations. 
They  would  like  to  possess  at  once  the  last  link  of  the 
chain,  without  stopping  to  think  whether  it  might  not 
later  be  spirited  away  from  them  by  the  hands  which 
hold  the  intermediary  links.  While  the  Englishman 
and  the  German  emphasize  the  importance  of  success, 
the  Frenchman  lays  particular  stress  on  desire.  He 
imagines,  to  his  own  detriment,  that  desire  is  power, 
that  "for  the  French,  there  is  nothing  impossible,"  and 
that  seeking  is  finding;  he  does  not  understand  why  any 
limit  should  be  set  to  the  freedom  or  the  intelligence  of 
man."  ^^ 

This  accounts  for  the  attitude  which  his  will  assumes 
in  the  face  of  events;  it  is  not  aware  of  the  obstacles 
which  are  set  in  its  way,  or  if  it  does  perceive  them,  it 
disdains  them  and  passes  by  on  the  other  side.  What  is 
more,  the  obstacle  even  possesses  an  attraction  for  it, 
as  if  it  found  opportunity  therein  for  a  triumphant  mani- 
festation of  human  freedom.  It  does  not  recoil  even 
from  death,  the  supreme  obstacle,  believing  itself 
imbued,  despite  appearances,  with  invincible  and  immor- 
tal strength.  Few  races  in  history  have  looked  upon 
death  with  a  more  smiling  countenance,  or  yielded  up 
the  gift  of  life  with  less  of  regret. 

11  Kant  —  in  his  acute  observations  on  the  characters  of  peoples, 
written,  let  us  note,  in  1764  —  made  one  memorable  mistake  which 
shows  that  the  history  of  nations  contains  many  surprises  for  the  psycho- 
logy of  peoples.  "The  Frenchman,"  he  wrote,  "is  a  peaceful  citizen,  who 
when  oppressed  by  the  farmers-general,  takes  revenge  by  satires  cr  by 
parliamentary  remonstrances;  and  when  the  fathers  of  the  people  have 
satisfied  popular  desire  by  a  fine  show  of  patriotism,  all  comes  to  an  end 
in  a  glorious  exile  and  songs  in  their  praise."  Atid  all  ends  in  song,  while 
waiting  for  1793. 


§12] 


THE   FRENCH   SPIRIT  27 


§  12.     TJie  Invincible  Optimism  of  the  French.     In  the 
case  of  possible  victory,  when  only  courageous  effort  is 
required,  who  has  a  better  chance  to  win  than  he  who 
has  no  fear  of  danger?     We  need  look  no  further  for  an 
explanation  of  those  inspired  successes  which  enabled  an 
entire  nation,  with  one  impulse,  to  reach  the  desired 
goal.     We  may  explain  similarly  those  failures  due  to 
inexperience  and  the  want  of  foresight,  and  also,  which 
is  a  graver  matter,  those  boastings  which  have  exposed 
us  to  the  charge  of  levity  and  ostentation,  and  finally, 
that  profound  but  not  prolonged  discouragement  which 
follows  our  moments  of  high  courage.     We  might  liken 
ourselves  to  a  traveler  who,  scaling  a  mountain  by  the 
most  perilous  path,  his  eye  fixed  upon  the  summit,  cast- 
ing no  look  behind  him,  suddenly  faces  an  insurmount- 
able obstacle.     He  stops,  turns  his  head,  is  seized  with 
giddiness,  and  lets  himself  be  led  down.     But  he  con- 
soles himself  with  the  thought  that  some  day,  by  another 
path,  he  will  yet  gain   the  summit.      The    Frenchman 
even  reaches  the  point  of  belittling  immediate  success 
and  present  utility;    his  reason  temporarily  renounces 
the  attainment  of  material  results,  provided  the  truth 
of    "principles"    be    acknowledged.     This    is    why    the 
French  people  want,  at  the  beginning  of  every  political 
constitution,  a  declaration  of  rights,  hollow  though  it 
frequently  may  be,  which  apparently  satisfies  first  of  all 
their   reason,    or,    as   they   say,    "human   reason."     If 
shrewd    politicians    afterwards    corruptly    apply    these 
rights,  and  find  means  of  so  perverting  the  practical 
applications  that  the  principles  are  set  at  naught,  —  if, 
after   proclaiming  liberty,   they   confiscate  it,  —  we   in 
France,  at  any  rate,  would  rather  see  the  idea  of  right 
recognized  and  our  own  right  disregarded;    others,  we 
say,  will  profit  by  the  truths  which  the  very  ones  who 
violated  them  will  be  forced  to  proclaim  to  the  world. 


28  NATIONAL   CHARACTERISTICS      [Ch.  II 

Thus  do  we  argue,  always  too  ready  to  ignore  ourselves 
and  to  let  ourselves  be  imposed    upon.     Napoleon    I 
understood  this  trait  when  he  wrote  to  Fouché:    "Sup- 
press all  the  newspapers,  but  put  six  pages  of  liberal 
reflections  concerning  principles  at  the  beginning  of  the 
decree."     The  Frenchman  has  a  speculative  mind;    he 
would  have  the  light  visible  to  all  even  though  he  him- 
self were   immured   in  darkness.     He  says  to  himself, 
"The  sun  will  rise,  and  the  light  will  shine  for  all  at  last." 
Moreover,  if  the  French  people  have  neglected  their 
liberty  in  practice,  it  is  really  because  they  have  always 
believed  themselves  certain  to  get  it  back  again.     If  they 
have  made  the  egregious  mistake  of  letting  themselves 
be  fettered,  it  has  been  because  of  faith  in  their  power 
to  will  the  fetters  off  again.     If  they  have  enthusias- 
tically  prostrated   themselves   before   a  man,  and,  for 
the  time  being,  sacrificed  their  liberty  to  him,  they  have 
acted  under  the  promise  that  this  would  be  given  back 
to  them,  or  with  the  mad  and  perilous  mental  reserva- 
tion that  a  revolution  would  suffice  to  deliver  them  from 
the  yoke  of  despotism.     In  France  they  do  not  admit 
that  an  iniquitous  régime  can  be  maintained,  and  they 
constantly   repeat,    "That   cannot   last,"   as   if  history 
did  not  continually  belie  such  optimism.     This  shows  a 
naive  and  invincible  confidence  not  only  in  the  final 
triumph  of  justice,  but  also  in  the  general  spirit  of  the 
nation;    each  individual  feels  that  he  can  accomplish 
nothing  alone,  but  believes  himself    to    be    a    part   of 
a  society  which   sooner  or   later  will   triumph.      This 
social  instinct,  this  consciousness  that  we  and  our  com- 
patriots hold   ideas   in   common,   is   what  gives  us  in 
duress  a  temporary  resignation  by  keeping  alive  a  per- 
petual hope. 

§  13.     French  Politics  are  Not  Utilitarian.     The  other 
nations,    much   more   prudent  and    practical,  therefore 


113]  THE  FRENCH  SPIRIT  29 

accuse  us,  not  without  reason,  of  levity  and  thoughtless- 
ness.    Yet  they  do  not  always  understand  what  fixity 
of  ideas  may  be  concealed  at  times  underneath  our 
seeming  mobility.     The  Celtic  race  is  obstinate;    look 
at  our  Bretons.     In  point  of  ideals,  England  and  Ger- 
many, each  in  its  own  way,  readily  content  themselves 
with   a   partial   fulfillment;    anything  substantial,  even 
though  limited  and  incomplete,  satisfies  them,  and  they 
renounce  all  else.     They  want  good  legal  guaranties  for 
their    present   interests,   a  good    system   of  defense  or 
attack  for  their  personal  service.     They  make  few  gifts 
to  others,  and  seldom  lend  except  on  mortgage.     This 
has  its  advantages,  but  it  may  also  have  its  dangers. 
If  the  nobility  and  the  grandeur  of  the  end  frequently 
make  the  French  oblivious  to  the  difficulty  of  the  means, 
the  other  nations,  on  the  contrary,  seeing  more  or  less 
well  calculated  means  on  every  hand,  would  be  led  in 
the   end   to   renounce   the   lofty   and   far-distant  goal. 
Furthermore,  they  would  at  last  come  to  see  in  men 
themselves  only  means  and   instruments,   elements  of 
calculation,  figures  of  interest,  units  of  force.     The  dis- 
tance from  this  to  the  use  of  men  at  need,  as  one  uses 
things,   is  not  great.     On   the  other   hand,  nothing  is 
more  antipathetic  to  the  spirit  of  the  French,  which 
opposes  to  purely  utilitarian  politics  and  the  traditional 
Machiavelism  the  idea  of  human  inviolability  and  of 
"human  rights."     The  French  are  by  no  means  strangers 
to  violence,  especially  in  times  of  revolution;    but  it 
is  then  the  result  of  extreme  excitement.     They  never 
resort  to  it  in  cold  blood,  organizing  it  according  to  the 
rules  of  science,  with   a  preconceived  design,  as  the 
Romans  did.     Moreover,  the  French  as  a  race,  in  their 
customary  modes  of  action,  know  little  of  deceit;    jus- 
tice and  the  right  are  invoked.     Has  France  ever  been 
given,  even  in  jealousy,  the  name  of  "perfidious  France?" 


30  NATIONAL  CHARACTERISTICS      [  Ch.  II 

We  have  often  been  accused,  and  rightly  so,  of  passion, 
of  madness,  of  desperate  acts,  but  seldom  of  disloyalty. 
Bad  faith  requires  combination,  precaution,  secrecy,  and 
delay,  for  which  the  French  are  poorly  fitted;  this  is  not 
their  vocation. 

§  14.  The  Genius  of  Our  Language.  Even  our  lan- 
guage is  excessively  frank  and  rectilinear,  like  our 
national  spirit,  —  for  the  language  of  a  people  is  to  the 
national  character  what  the  facial  features  are  to  the 
character  of  an  individual.  Philology  is  a  physiognomy. 
"The  other  languages,"  said  Rivarol,  "would  have  been 
fitted,  by  their  obscurity,  to  the  rendering  of  oracles; 
ours  would  have  robbed  them  of  their  mystery."  It  is 
laws  and  not  oracles  that  our  language  is  best  fit- 
ted to  express,  laws  of  science  and  laws  of  men. 
Our  language  is  neither  the  most  metaphysical  nor 
the  most  poetical,  but  it  is  the  most  scientific  and 
the  most  juridical.  For  the  expression  of  the  most 
general  ideas  and  the  most  generous  passions,  it  is  in- 
comparable. 

§  15.  Fatalism  Not  Acceptable  to  the  French.  The 
pre-eminence  in  the  French  mind  of  the  universal  idea 
over  particular  facts,  of  the  final  end  to  be  attained  over 
the  immediate  means,  accounts  for  the  idealistic  and 
rationalistic  tendencies  of  the  French,  extremely  evi- 
dent in  our  legal  systems  and  constitutions.  This  politi- 
cal idealism  is  in  contrast  with  the  more  naturalistic  and 
historical  spirit  of  some  nations;  for  the  concatenation 
of  the  facts  of  experience  is  really  nature.  Moreover, 
as  this  concatenation  has  a  character  of  necessity,  as 
causes  and  effects,  means  and  ends,  form  a  mechanism 
governed  by  mathematical  laws,  the  nations  which  recog- 
nize this  mechanism  everywhere  are  predisposed  to 
fatalism.  On  the  other  hand,  fatalism  has  no  place 
in    the    French    character.       Neither    the    dogmas    of 


§15 


THE   FRENCH   SPIRIT  31 


Luther  and  Calvin,  nor  the  foreign  metaphysics  by 
which  the  human  will  is  completely  absorbed  mto  the 
great  whole,  have  become  acclimated  among  our  people, 
who  believe  in  freedom  more  than  in  destiny  (even  m 
the  inexact  form  of  free  will),  and  more  m  law  than 

in  grace.  r      i-  +-1, 

The  effect  of  metaphysical  or  religious  fatalism  on  ttie 
will  of  a  people,  in  all  political  and  social  practices  and 
reforms,  is  to  moderate  impatient  desire  for  progress, 
sometimes  even  to  destroy  the  idea  of  it,  as  it  tends  to 
do  in  Germany,  where,  since  Schopenhauer  and  Hart- 
mann, a  dejected    pessimism  has  seemed  to  triumph. 
Quite  opposite  is  the  effect  of  the  doctrine  which  teaches, 
in  one  or  another  fashion  (perhaps  metaphysically  super- 
ficial), that  there  is  some  power  of  freedom  inherent  in 
man-    for   freedom   is  at  bottom   nothing   more   than 
unlimited  perfectibility.     It  is  worthy  of  remark  that 
France  is  the  country  where  the  doctrine  of  progress  was 
developed  by  Pascal,  Turgot,  Condorcet,  Auguste  Comte 
and  their  successors,  and  that  tliis  is  the  doctrine  which 
has  contributed  to  the  reconstruction  of  law.     Here  is 
another  trait  of  our  nationality,   characteristic  to  the 
psychologist  as  well  as  to  the  historian.     The  French 
genius  had  only  to  become  conscious  of  its  aspirations  in 
order  to  conceive  the  idea  of  perfectibility,  one  of  its 
most  essential  tendencies.     With  the  impulsive  and  some- 
times bungling  spirit  of  the  innovator,  with  a  will  always 
seeking  what  is  best  and  impatient  to  attain  it,  its  eyes 
are  on  the  future  rather  than  the  past  or  even  the  pres- 
ent     Nor  is  it  willing,  in  its  legislation  and  its  politics, 
to  become  the  slave  of  either  history  or  tradition;    it 
does  not  even  comprehend  those  expressions  so  easily 
understood  beyond  the  Rhine  and  across  the  Channel, 
"historical    rights,"    "traditional    rights."     The   distin- 
guishing trait  of  freedom  — in  proportion  to  the  degree 


32  NATIONAL  CHARACTERISTICS      [  Ch.  Il 

in  which  this  exists  —  is  that  it  emancipates  itself  from 
the  past  and  produces  a  new  future;  seemingly  it  is 
initiative,  and  to  some  extent  creation,  at  any  rate  it  is 
progress.  Thus  it  prefers  even  the  Utopia  which  seeks 
the  ideal  and  gives  at  least  a  presentiment  of  it,  to  a 
routine  satisfied  with  what  has  been  and  what  is.  Eager, 
moreover,  for  what  is  new,  whicli  we  often  confound 
with  what  is  best,  enterprising  even  to  the  point  of 
temerity  or  folly,  we  incline  to  send  our  thoughts  on 
adventurous  expeditions  like  those  of  the  Gauls  to 
Greece  and  Rome.  Has  not  each  of  us  in  France,  even 
those  of  us  who  call  ourselves  most  matter-of-fact,  a 
little  Utopian  isle  within  him,  where  he  loves  to  take 
refuge,  and  to  construct  a  society  according  to  his  desires, 
a  government  which  should  be  perfect  for  all  the  ivorld, 
SL  realm  exactly  to  his  liking  where  reason  should  reign 
supreme!  Social  renovation  and  perfectibility,  which 
are  indeed  the  special  objects  of  socialism,  are  per- 
petual temptations  to  us  in  France;  to  some  extent,  we 
are  all  socialists. 

§  16.  Good  and  Bad  Effects  of  the  Doctrine  of  Progress. 
This  tendency  of  the  French  spirit  leads  to  overbold 
experiments  in  written  law  and  political  practice.  We 
often  disregard  actual  conditions,  those  of  national 
unity,  governmental  authority,  civic  and  military  dis- 
cipline. Let  us  beware  lest  a  loosening  of  all  social  and 
political  bonds  should  result  in  disorganization.  An  ill- 
regulated  freedom,  ill-advised  of  the  determinism  of 
exterior  conditions,  easily  engenders  license;  it  oscillates 
between  anarchy  and  despotism.  We  have  made  more 
than  one  unfortunate  experiment  of  this  kind,  in  which 
our  incapacity  to  distinguish  the  possible  from  the 
impossible  has  been  conspicuously  displayed.  We  con- 
sole ourselves  by  saying  that  it  is  only  by  seeking  that 
we  shall  find;  that  no  one  would  ever  have  learned  to 


§16]  THE   FRENCH  SPIRIT  33 

walk  except  by  falling.     Nevertheless,  we  should   not 
put  too  much  faith  in  downfalls. 

It  is  true  that  when  we  fall  we  rise  quickly;  and  that 
is  one  form  of  perfectibility.  In  our  race,  the  brain 
seems  prompt  to  adapt  itself  to  circumstances  and  to  new 
ideas,  and  also  to  profit  by  them.  This  aptitude  is  par- 
ticularly striking  among  the  ranks  of  the  people  of 
France.  They  are  quick  to  grasp  new  ideas  and  new 
sentiments,  especially  if  these  are  of  a  lofty  character; 
they  are  prompt  to  reach  the  high  level  of  their  writers, 
their  thinkers,  their  philosophers,  especially  upon  social 
or  political  questions.  They  know  how  to  follow  these 
leaders,  how  to  outstrip  them  at  times;  often  they  go 
too  far.  In  other  countries,  the  people  seem  to  be  a 
heavy  mass,  hard  to  rouse  or  to  uplift;  there  is  no 
doubt  less  spring,  elasticity,  spontaneity,  in  their  con- 
stitution. So  absorbed  are  they  in  their  local  ideas  that 
they  respond  less  readily  to  universal  thoughts,  to  broad 
juridical  or  political  conceptions.  Unless  some  example 
from  without  stirs  their  inertia,  they  do  not  feel  a  restless 
desire  for  change  and  progress  in  the  same  degree.  Now 
the  spirit  of  perfectibility,  the  faculty  of  rapid  adaptation 
to  a  new  environment,  is  of  no  less  value  to  a  nation  than 
it  has  been  to  certain  species  of  animals  which,  by  reason 
of  it,  have  survived  in  the  struggle  for  existence.  How 
often  have  we  asked  ourselves,  with  Heinrich  Heine, 
whether  France,  the  nation  "which  began  the  great  revo- 
lution of  Europe,  is  not  at  the  point  of  perishing,  even 
while  her  followers  are  gathering  the  fruits  of  her  heroic 
martyrdom!"  Heine  replies  jestingly,  "No,  the  French- 
man will  ne\'er  break  his  neck,  no  matter  from  what 
height  he  may  fall,  and  he  always  alights  on  his  feet." 
This  does  not  imply  dexterity  alone;  the  reason  for  this 
indomitable  vitality  is  an  instinct  for  independence  and 
for  progress,  which  is  stimulated  even  by  disappoint- 


34  NATIONAL   CHARACTERISTICS      [  Ch.  Il 

ment,  and  which  engenders  a  persistent  confidence  in 
the  final  triumph  of  justice.  Still,  let  us  not  exaggerate 
this  confidence,  lest  we  ourselves  become  victims  of  it. 

§  17.      National  Traits  Revealed  hy  the  Religion  of  the 
French.     The  worship  of  freedom  and  justice,  with  a 
frequently  blind   faith   in  their  ultimate  triumph,   has 
been  so  far  developed  in  France  that  it  tends  to  efface 
almost  every  other  cult.     There  can  be  no  long-lived, 
permanent  religion  in  modern  France  except  the  religion 
of  law.     Renan  speaks  somewhat  ironically  of  what  he 
calls  the  "democratic  religion";  he  is  certain  that  in  the 
beginning,  it  had,  like  all  the  others,  its  mysticism  and 
fanaticism.     Nevertheless,  it  has  this  singular  character, 
that  it  implies  nothing  supernatural.     The  idea  of  the 
supernatural  has  less  weight  in  France  than  anywhere 
else,  for  to  those  who  still  cherish  it  it  is  now  only  a 
superstition,  to  others  an  error.     The  French  people  are 
too  rationalistic  to  take  the  middle  course  of  compromise, 
of  halfway  measures,  of  half  faith  which  is  also  half 
incredulity,  of  what  they  regard  as  a  more  or  less  self- 
conscious  hypocrisy.     Their  faith   presents  to  psycho- 
logical analysis  nothing  complicated  or  difficult;   in  the 
way   of   positive   religion,   they   believe   everything   or 
nothing.     So  they  will  not  turn  from   Catholicism  to 
Protestantism,  as  they  are  nowadays  being  urged  to  do 
by  some  of  our  philosophers  who  are  preaching  in  the 
desert  ^2;  they  will  not  continue  affirming  the  divinity  of 
Jesus  after  they  have  refused  the  communion,  nor  will 
they  pretend  that  they  are  Christians  because  they  are 
philosophers.     If  a  Voltaire  tries  to  overturn  the  altar, 
he  will  not,  like  the  German  exegetes,  attempt  to  make 
it  appear  that  he  is  trying  to  lift  it  up.     Be^^ond  the 
Rhine,  it  is  often  the  teachers  of  theology  who  undermine 
theology,  even  while  they  continue  to  teach  it  piously  in 

12  Renouvier,  for  example. 


§17]  THE   FRENCH  SPIRIT  35 

their  official  chairs.  Victor  Cousin  once  possessed  a 
curious  medalHon,  struck  at  BerHn  in  honor  of  Hegel, 
who  had  proudly  presented  it  to  him;  on  the  reverse, 
Hegel  is  represented  as  an  ancient  philosopher,  writing 
at  the  dictation  of  an  angel  who  is  leaning  for  support 
on  religion,  holding  in  her  arms  the  cross  of  Jesus  Christ. 
In  fact,  all  the  great  German  philosophers  have  been 
stout  tlieologians.  On  this  side  of  the  Rhine,  however, 
we  are  weak,  very  weak  indeed,  in  theology,  unac- 
quainted with  the  learned  and  subtle  arcana  of  dog- 
matics, canonics,  and  exegetics.  Would-be  slanderers 
insist  that  a  mere  "privat-docent"  of  Germany,  or  the 
humblest  teacher  of  England,  knows  more  on  this  sub- 
ject than  all  of  our  faculties  of  theology.  Most  French- 
men will  accept  this  criticism  as  a  compliment.  We 
may  explain  the  fact  by  saying  that  theological  incredu- 
lity is  much  more  deep-seated  in  the  German  systems 
than  with  us.  Voltaire,  like  Boileau  and  Molière,  calls  a 
spade  a  spade  and  a  falsehood  a  falsehood,  without  sub- 
terfuge, without  hyperbole,  without  parables  or  symbols. 
This  is  not  always  the  best  way  to  appreciate  things  from 
an  historical  point  of  view;  in  this  particular,  a  Voltaire  is 
far  from  being  a  Strauss.  But  from  the  purely  philo- 
sophical point  of  view,  France  shows,  in  this  respect, 
independence  of  both  character  and  intellect.  The 
mind  which  looks  for  subterfuges  and  shrouds  itself  in 
obscurity  does  not  seem  absolutely  independent,  even 
when  it  bids  us  perform  acts  of  independence;  nor 
does  it  seem  sufficiently  logical  when  it  admits  a  prin- 
ciple, but  insists  on  rejecting  its  necessary  consequences. 
So  France  regards  herself  as  the  real  motherland  of  the 
freethinkers  —  "libres  penseurs";  this  term,  express- 
ing independence  of  thought,  is  essentially  French.  And 
we  have  in  mind  here  not  merely  the  professional  men 
of  thought,  philosophers,  scholars,  or  others  of  lofty  intel- 


36  NATIONAL   CHARACTERISTICS      [  Ch.  Il 

lectual  culture,  but  rather  the  multitude,  the  people 
properly  so  called,  the  workingmen  and  even  the  peas- 
ants.    In  Prussia,  in  England,  and  in  the  United  States, 
the  people  feel  no  need  of  changing  their  religion  or  of 
rejecting  all  religion;  they  continue  to  read  their  Bibles, 
to  observe  the  Sabbath,  and   to  sing  hymns,  without 
constantly  asking  themselves  this  question,  which  is  as 
frank  and  direct  as  a  problem  in  law:  "Am  I  a  Christian, 
yes  or  no?     Have  I  the  right,  yes  or  no,  to  go  to  church 
as  if  I  were  a  believer?"     In  France,  we  have  the  almost 
unique  example  of  a  people  who  are  freethinkers  through 
and  through.     Similarly  unique  in  history  is  the  great 
social  and  political  movement  carried  out  by  the  mass 
of  the  French  people,  in  the  French  Revolution,  under 
the  influence  of  a  purely  moral  and  religious  idea  with 
no  admixture  of  religion  and  even  contrary  to  every 
religious  idea.     Since  that  time,  many  have  considered 
ethics  to  be  independent,  law  to  be  independent,  and  poli- 
tics to  be  independent.     That  is  why  no  nation  has 
restricted  more  than  has   France  the  rôle  played  by 
religious  traditions  in  legislation.     Our  code  is  on  the 
whole  neither   Catholic  nor   Protestant;    it  establishes 
the  rights  of  man  as  purely  human,  in  no  sense  divine 
and  theocratic.     It  has  been  said  that  the  absence  of 
religious   faith    weakens    just    so  much    our    national 
forces.      It  should  be  remembered   that  this    faith    is 
replaced    by    another   kind   of   faith    which,    we   must 
admit,  has  also  its  dogmas  and  perhaps  its  illusions  — 
faith   in    just    law  and    in    fraternity,    faith    in    pro- 
gress;   and  this  other  belief  is  also  a  force.     So  there 
is  little  ground  for  denying   that   the   French   have  a 
faith  which  is  a  source  of  power.     Only,  it  tends  to  con- 
found  itself  more  and  more  with   science,    to    become 
purely  rational  and  social,  and  in   consequence,    purely 
republican. 


§18]  THE   FRENCH   SPIRIT  37 

§  18.  Liberty  the  Primary  Basis  of  Law.  Among 
these  many  traits,  which,  in  a  frequently  excessive 
form,  manifest  a  disposition  hostile  to  obstacles  and 
limits,  and  consequently  to  all  forms  of  bondage  and 
servitude,  the  "psychology  of  peoples"  can  scarcely  fail 
to  recognize  as  our  essential  characteristic  a  love  of 
freedom,  often  immoderate  to  be  sure  —  freedom  not  for 
ourselves  alone,  but  for  all  men  and  all  nations.  It  was 
upon  human  liberty,  set  forth  as  a  prerogative  superior  to 
all  things,  worthy  of  the  respect  of  all  men,  equal  for  all, 
that  France  was  finally  to  found  the  idea  of  law;  there 
was  no  interest,  there  was  no  material  force,  which 
could  surpass  in  her  eyes  that  rational  and  moral  power. 

Yet  for  the  French  this  is  only  the  first  foundation- 
stone  of  law;  they  do  not  comprehend  liberty  apart 
from  equality,  for  which  we  now  have  to  show  their 
deep-rooted  instinct. 

§  19.  Liberty  and  Equality  are  Inseparable.  All  ob- 
servers are  agreed  in  attributing  to  the  French  a  love  of 
equality;  some  go  so  far  as  to  say  that  France  loves  only 
equality,  and  not  liberty.  This  is  an  exaggeration  which, 
when  we  examine  it  closely,  barely  escapes  self-contradic- 
tion. De  Tocqueville  did  not  avoid  it  entirely  when  he 
was  pleased  to  contrast  systematically  two  tendencies 
which  are  in  reality  inseparable.  Is  it  not  precisely 
because  France  lo^'es  liberty  that  she  loves  equality? 
To  the  French,  what  is  inequality,  if  not  privilege  for 
one  man  and  servitude  for  another,  and  consequently  a 
lack  of  liberty?  Inequality  seems  to  them  an  infringe- 
ment of  common  rights,  a  distinction  set  up  between  the 
person  of  the  noble  or  the  rich  man  and  the  person  of 
the  commoner  or  the  poor  man.  To  recognize  no  rights, 
no  benefits,  no  social  classes,  no  privileged  dynasties 
superior  to  oneself,  is  to  feel  that  human  dignity  is  as 
respectable  in  oneself  as  in  others,  and  for  the  same 


38  NATIONAL   CHARACTERISTICS      [  Ch.  II 

reason;  such  has  always  been  the  French  instinct. 
Even  our  peasants  used  to  sing  : 

Nous  sommes  hommes  comme  ils  sont, 
Des  membres  comme  nous  ils  ont; 
Tout  autant  souffrir  nous  pouvons, 
Un  aussi  grand  cœur  nous  avons.^' 

The  legislators  of  1789,  when  they  established  equality 
of  rights  for  all,  purposed  by  that  very  act  to  safeguard 
the  liberty  of  all.^^ 

§  20.  Spirit  of  Equality  Peculiar  to  the  French.  In- 
equality, in  the  eyes  of  the  French,  is  an  offense  against 
reason  no  less  than  against  liberty;  thus  it  could  not 
satisfy  the  logical  mind  any  more  than  it  could  the 'juri- 
dical instinct.  The  exceptions,  the  self-contradictions 
of  formal  law  and  the  resulting  inequalities  am.ong 
citizens,  are  necessarily  painful  to  their  intelligence, 
extremely  devoted  as  it  is  to  whatever  is  general  and 
"conformable  to  principles."  The  English  and  the 
Germans  do  not  feel  this  need.  They  generally  adapt 
themselves  to  their  lords  and  their  country  squires; 
they  have  kept  the  spirit  of  the  feudal  hierarchy.  France 
is  the  only  country  which  really  no  longer  possesses  a 
nobility.  After  all,  have  the  English  laborer  who 
admiringly  watches  the  nobleman  go  by  in  his  carriage, 
or  rather  the  carriage  in  which  the   nobleman    rides 

1'  We  are  men,  as  they  are, 

They  have  bodies,  as  we  have; 

We  can  suffer  just  as  much. 

And  our  hearts  are  just  as  large. 
"  Doubtless  there  are  nations  who,  like  the  EngUsh,  believe  that  they 
can  attain  liberty  without  equaUty,  and  even  through  inequality  itself; 
but  to  the  French  mind  this  is  an  optical  illusion.  In  England,  in  fact, 
wherever  liberty  exists,  there  true  equality  exists  also.  A  recognition 
of  the  right  of  free  speech  and  of  the  freedom  of  the  press,  for  example, 
results  in  an  equal  freedom  of  all  citizens  to  speak  and  to  write;  thus 
liberty  and  equality  coexist.  On  the  other  hand,  privileges  in  respect 
of  the  ownership  of  land  constitute  at  once  an  inequality  and  an  infringe- 
ment of  the  liberty  of  some  to  the  profit  of  others. 


§20]  THE   FRENCH   SPIRIT  39 

unseen,  and  the  German  who  reveres  his  lord  and  master 
the  Emperor,  as  well  as  all  his  other  lords  and  masters,  — 
have  these  two  a  sense  of  common  right  in  the  same 
degree  as  the  French  workingman  who  says,  when  he 
sees  some  one  richer  in  this  world's  goods  than  himself, 
"One  man  is  as  good  as  another"?  Have  they  as  much 
of  a  sense  of  independence  and  personal  dignity  as  that 
peasant-soldier  of  the  Revolution  who  replied  to  a 
refugee  boasting  of  his  ancestors,  "I  myself  am  an 
ancestor"?  There  has  been  ample  ground  for  saying 
that  the  Revolution,  in  proclaiming  equality,  wished 
not  to  destroy  the  true  nobility,  but  rather  to  confer 
nobility  upon  thirty-two  millions  of  men. 

Unfortunately,  we  have  not  only  evinced  a  certain 
spirit  of  insubordination,  produced  by  the  instinct  of 
equality,  but  we  have  more  than  once  let  ourselves  be 
too  easily  consoled  for  absent  liberties  by  a  false  equality. 
This  is  doubtless  because  equality,  for  us,  presupposes  a 
kind  of  justice  even  in  injustice,  a  certain  common  right 
even  in  the  violation  of  a  right.  Furthermore,  even  if 
the  outward  and  political  liberties  are  lacking,  equality 
before  the  written  law  seems  to  us  at  least  a  recognition 
of  human  liberty  and  dignity,  "in  principle"  if  not  in 
fact.  After  all,  the  outward  liberties  are  advantages  of  a 
rather  more  individual  character,  guaranties  of  a  some- 
what more  personal  nature;  and  it  is  a  recognized  fact 
that  the  French  are  only  too  ready  to  disregard  indi- 
viduals and  private  interests.  Thus  equality  satisfies 
their  sense  of  impersonality  and  impartiality;  if  there 
is  a  yoke  to  be  borne,  let  it  at  least  be  borne  in  com- 
mon, so  that  it  may  be  felt  by  all,  hated  by  all,  and 
when  the  right  moment  comes,  broken  by  all  at  the 
same  time.  This  is  only  another  example  of  their 
excessive  and  improvident  confidence  in  the  omnipo- 
tence of  the  human  will  and  of  the  "free  agent." 


éO  NATIONAL   CHARACTERISTICS      [Ch.II 

§  21.  Manifestations  of  the  Spirit  of  Equality.  Before 
it  regenerated  the  civil  and  political  order,  the  instinct 
of  equality  was  given  material  expression,  in  the  eco- 
nomic system  of  France,  by  the  progressive  division  of 
property  among  all  of  the  citizens.  This  movement 
preceded  1789.  Our  recent  historians  have  shown  us 
that  it  was  well  under  way  by  the  beginning  of  the 
Revolution,  which  was,  in  a  sense,  an  outgrowth  of  it.^* 
Unquestionably  the  psychology  of  a  national  character 
is  revealed  in  the  political  economy  of  a  nation,  as  in 
all  else.  The  instinct  for  freedom  takes  shape  as  an 
instinct  for  ownership;  the  instinct  for  equality,  as  a 
more  and  more  nearly  uniform  division  of  property. 
If  the  peasant  and  even  the  workingman  are  acknowl- 
edged to  be  more  generally  thrifty  in  France  than  in 
other  countries,  more  zealous  in  saving  for  a  future  day, 
more  desirous  of  investing  their  savings  in  some  personal 
or  real  property,  —  if  their  foresight  offers  a  contrast 
to  the  often  blind  prodigality  of  the  English  or  the  Ger- 
man ^^  workingman,  —  it  is  because  they  feel  that  in 
the  form  of  property  freedom  and  labor  possess  con- 
creteness,  hold  a  guaranty  of  independence,  and  find  a 
refuge  from  the  hazards  of  fortune  or  the  encroachments 
of  men.  They  also  feel  that  since  freedom  should  be 
equal,  property,  which  is  the  external  guaranty  of  free- 
dom, should  itself  become  more  and  more  nearly  equal 
among  all  men.  Besides,  if  the  true  foundation  of  the 
right  of  property  is  labor,  as  the  French  people  have 

16  In  1785,  Arthur  Young  was  amazed  to  see  "the  land  thus  divided  up" 
among  us.  In  1738,  the  Abbé  de  Saint-Pierre,  after  making  inquiries 
from  stewards,  remarked  that  in  France  "nearly  every  day-laborer  has  a 
garden,  a  piece  of  vineyard,  or  some  other  bit  of  land"  ("Œuvres,"  Rot- 
terdam edition,  v.  x,  p.  251).  In  1697,  Bois-Guillebert  deplored  the 
necessity  under  which  the  small  landowners  found  themselves,  in  the 
time  of  Louis  XIV,  of  selling  a  large  part  of  the  possessions  acquired  in 
the  1500s  and  the  1600s. 

16  See  the  reports  on  the  expositions  of  Vienna  and  Philadelphia. 


§21]  THE   FRENCH  SPIRIT  41 

always  inclined  to  believe,  and  as  the  Revolution  affirmed, 
then,  where  all  men  are  working,  all  ought  to  have  prop- 
erty.    Here   again    national    tendencies   manifest   their 
divergence;   the  observation  has  been  well  grounded  that 
in  doubtful  cases  and  disputes  over  property,  the  French 
have  usually  adjudged  the  land  to  the  man  who  tilled  it 
and  have  put  the  law  on  his  side;    the  English,  on  the 
contrary,  have  pronounced  in  favor  of  the  nobleman  and 
have  driven  out  tlie  peasants,  so  that  their  land  is  now 
cultivated  by  none  but  day-laborers.     Michelet  and  the 
entire  democratic  school  looked  upon  this  as  one  of  the 
moral   and   human   characteristics  of  our   Revolution; 
man,  man's  freedom,  and  man's  labor  seemed  to  the 
reformers  of  1789  to  be  of  a  value  which  could  not  be 
counterbalanced  by  mere  wealth.     Thus  it  is  that  in 
France  man  has  taken  possession  of  the  land,  while  in 
England  land  has  taken  possession  of  the  man.    "There 
is  an  important  moral  difference.     Let  the  possessions 
be  great  or  small,  they  put  courage  in  the  heart;   many 
a  man  who  would  not  have  respected  himself  on  his  own 
account,   respects  and   esteems  himself  because  of  his 
property."      Progressive  equality  of  fortunes  is  virtually 
only  the  distributing  of  respect  among  all  men,  and  the 
expression  in  material  form  of  equality  of  rights.     In 
Germany,    as    in    England,    ownership    and    land    have 
retained  a  mystic  and  feudal  character,  instead  of  being 
regarded  as  human  institutions  created  by  labor  ;  divine 
right,   also,   and   the  right   of  conquest  by  arms,   two 
forms  of  aristocratic  privilege,  still  underlie  both  legis- 
lation and  popular  thought  in  those  countries.     Ours  is 
the  only  social  economy  which  is  truly  democratic  in  its 
essence. 

The  feudal  character  and  the  spirit  of  inequality  are 
no  less  persistent  in  the  English  or  even  in  the  German 
family,  where  the  husband  is  often  a  lord,  a  suzerain. 


42  NATIONAL   CHARACTERISTICS      [Ch.  II 

In  England,  the  personality  of  the  wife  almost  wholly 
disappears  in  marriage;   she  enjoys  no  right  of  personal 
property,  she  has  no  power  over  her  children,  she  may 
not  make  a  will  without  her  husband's  consent,  and  her 
husband  may  will  the  guardianship  of  the  children  away 
from  the  mother,  who  has  no  personal  claim  upon  them. 
The  head  of  the  family  may  thus  hold  his  wife  in  sub- 
jection,   administering    and    perchance   dissipating    the 
family  fortune  without  giving  any  account  of  what  he  is 
doing.     The  same  seignioral    relation    generally  exists 
between  the  father  and  the  children,  with  no  familiar 
intimacy,  no  voluntary  equality  in  matters  of  affection, 
relations   which    need    not   of   course   exclude    respect. 
Finally,  there  is  inequality  in  the  relations  of  brothers 
among  themselves,  between  the  eldest  and  the  youngest; 
they  maintain  a  hierarchy  of  commandment  and  obedi- 
ence.    In  Germany  also,  the  father  is  the  supreme  lord  ; 
the  wife  and  children  are  often  veritable  vassals.     In 
the  French  family,  as  in  the  French  State,  equality  tends 
to  increase  with  liberty  itself,  drawing  after  it  its  incon- 
veniences   and    also    its   familiar    advantages;     greatly 
diminishing  the  authority  of  the  father,  cultivating  early 
the  minds  of  the  mother  and  the  children,  uniting  all 
their  hearts  by  a  most  tender  and  freely  accepted  bond. 
Hence  there  has  come  into  being  in   France,   in  the 
bosom  of  the  family,  a  better  developed  idea  of  "women's 
rights,"  of  children's  rights,  and  at  the  same  time  a  per- 
vading sense  of  fraternity  and  affection,  through  which 
the  father  tends  to  become  only  a  more  deeply  respected 
brother  to  the  children,  and  the  mother  a  more  beloved 
sister.     In  a  word,  while  among  the  other  peoples  the 
family  retains  the  aristocratic  form,  in  France  it  tends  to 
became  republican. ^^ 

"  For  more  details  on  this  point,  see  our  reply  to  a  letter  from  Spencer, 
in  our  "Science  Sociale  Contemporaine,"  p.  168. 


§22]  THE   FRENCH   SPIRIT  43 

§  22.  Equality  Must  Stand  Second  to  Liberty.  Thus, 
in  the  family  as  well  as  in  the  State,  in  the  realm  of 
economics  as  well  as  in  the  civil  and  political  domain, 
liberty  and  equality  have  always  appeared  to  the  French 
mind  as  inseparable.  But  if  France  has  maintained 
these  terms  in  an  indissoluble  union,  she  has  considered  it 
no  less  important  to  avoid  reversing  their  rational  order. 
The  Americans  began  their  enumeration  of  rights  with 
equality;  Robespierre  also  gave  it  the  first  place  —  we 
all  know  what  order  finally  prevailed.  Right  does  not 
consist  in  an  attempt  to  put  all  things  on  the  same 
level,  but  in  an  equalization  of  liberties.  Two  men 
who  drag  cannon-balls  of  equal  weight  are  not  for  that 
reason  free  men.  Equality  under  a  master,  as  Caesarism 
would  like  to  see  it  exist,  is  only  a  vain  delusion.  Nothing 
is  more  inconsistent  or  capricious  than  the  will  of  a 
despot;  he  grants  a  favor  to  one,  and  refuses  it  to 
another;  he  punishes  one  and  lets  another  go  free. 
There  is  enough  of  the  arbitrary  in  the  state  of  servitude 
to  make  equality  impossible;  hence  it  is  equality  in 
freedom  and  not  in  bondage  that  constitutes  the  right. 

§  23.  Possible  Misapplications  of  the  Idea  of  Equality. 
It  is  true  that  we  do  not  always  reason  as  accurately  in 
practice  as  in  theory.  We  pass  very  easily  from  the 
genuine  to  the  false  equality,  to  that  which  acts  as  a 
leveler  and  not  merely  rejects  factitious  or  artificial 
inequalities,  but  even  disregards  natural  inequalities. 
Have  not  certain  egalitarians  proposed  to  establish  by 
law  equality  of  brains,  and  even  of  "stomachs"?  More- 
over, there  is  an  obvious  danger  in  the  realm  of  politics, 
in  not  knowing  how  to  obey,  how  to  respect  the  authority 
which  springs  from  equality  as  well  as  from  liberty 
itself. 

§  24.  Defects  of  the  National  Character.  To  sum  up, 
our  faults  are  due  to  the  want  of  what  other  nations 


44  NATIONAL   CHARACTERISTICS      [Ch.II 

have  in  excess;    rationalists   and   logicians  we  are,   to 
excess,  but  not  in  sufficient  degree  naturalists  or  even 
metaphysicians,  in  the  correct  sense  of  the  word.     We 
are  too  much  disposed  to  regard  society  as  an  ensemble 
of   independent  individuals,   of  co-equal   mathematical 
units,  which  join  together  by  an  act  of  free  will  accord- 
ing to  the  rules  of  logic  and  geometry.     In  spite  of  the 
work  of  the  Positivist  and  the  historical  schools,  we  are 
still  deficient  in  a  sense  of  life  and  of  history.     We  are 
not  yet  sufficiently  familiar  with  the  idea  that  human 
society  is  not  merely  an  aggregation  of  rational  wills, 
but  is  also  a  living  organism,  subject  to  the  laws  of 
physiology  and  biology.     We  forget  that  a  living  body 
does  not  change  over  night;    that  if  the  cutting  and 
clipping  of  surgery  are  sometimes  necessary,  the  imper- 
ceptible operations  of  hygiene  and   medicine  are  still 
more  so.     Just  as  we  too  readily  conceive  of  freedom  in 
the  form  of  free  will,  so  we  believe  that  society  can  be 
regenerated  through  the  agency  of  free  will,  of  enact- 
ments, and  of  improvised  laws  and  constitutions.     We 
forget  the  great  factor  in  biology  and  history  —  time. 
This  leads  us  to  create  artificial  breaks  of  continuity 
between  the  present  and  the  past;    we  want  to  start 
with  a  tabula  rasa,  we  want  to  re-read  the  book  from 
the   first   line   to   the  last.     There   are   Frenchmen   for 
whom  France  begins  in  1789.     We  lack  feeling  for  tradi- 
tion and  historical  solidarity.     We  trust  too  much  to 
revolution,  and  not  enough  to  evolution.     The  profound 
and  complicated  determinism  of  living  nature  escapes  our 
excessively  geometrical  minds  which  reduce  all  things 
to   abstract   theories.     Furthermore,    we    lack   a   suffi- 
ciently developed  metaphysical  sense;    we  understand 
well  enough  that  there  is  something  sacred  in  an  indi- 
vidual, but  we  do  not  comprehend  quite  clearly  that 
in  a  certain  sense  a  nation  is  itself  a  living  individuality, 


§24]  THE  FRENCH   SPIRIT  45 

not  merely  an  accidental  and  artificial  collection.  Our 
legitimate  fear  of  metaphysical  entities  causes  us  to 
overlook  realities  themselves.  The  result  is  that  every 
question  of  right  which  we  have  to  consider  narrows  itself 
down  too  much  to  a  relation  between  two  mdividuals, 
and  we  are  prone  to  forget  the  connection  of  the  mdi- 
viduals with  the  whole,  with  the  social  organism,  a  con- 
nection which  seems  also  to  be  an  essential  element  in 

the  problem.  t     •    4-v, 

§  25.     Means  of  Remedying  Our  Defects.     It  is  there- 
fore desirable  that  our  national  spirit,  whose  most  con- 
spicuous trait  is  the  facility  for  clarifying,  expanding 
and  assimilating  the  ideas  of  others,  should  borrow  of 
the  genius  of  other  nations,  inasmuch  as  this  will  be 
either   more  metaphysical  or  more   practical  and   his- 
torical.    Apparently,    with    our   democratic   and   egali- 
tarian spirit,  we  need  have  no  fear  of  the  excesses  mto 
which  the  other  nations  are  led,  whether  these  nations 
permit  the  final  absorption  of  the  individual  mto  the 
nation  or  into  the  universal  spirit,  whether  they  reduce 
societies  too  much  to  a  play  of  interests  or  to  a  purely 
biological    development   of   necessary    functions      It   is 
rather  the  opposite  excess  which  we  have  to  fear.     It 
we  should  confine  ourselves  too  closely  to  our  atomistic 
conceptions  of  the  social  order,  it  would  be  at  the  risk 
of  bringing  our  society  into  a  state  of  dissolution;   it  is 
precisely  because  we  are  to-day,  in  the  interest  of  '  the 
world  "    carrying   on   the   experiment   of   a   republican 
society,  which  is  evidently  what  the  world  is  coming  to, 
that  we  should  take  it  upon  ourselves  to  draw  closer 
the    bonds    which    still    unite    our    national    organism 
Instead  of  trying  to  break  all  ties  at  once,  we  shou  d 
endeavor  to  reconcile  the  continuity  of  social  life  with 
the  progress  of  "reason,"  which  is  always  in  search  of 
something  better.     The  two  devices,  change  and  dura- 


é6  NATIONAL   CHARACTERISTICS      [  Ch.  Il 

tion,  far  from  being  incompatible,  presuppose  one 
another;  let  us  not  dwell  upon  the  first  to  the  exclusion 
of  the  second.^^ 

18  If  we  are  not  mistaken,  these  ideas  should  dominate  the  education 
given  to  the  people  to-day  by  virtue  of  the  law  providing  for  free  com- 
pulsory instruction.  Our  social  and  political  future  depends  in  great 
measure  upon  the  teaching  of  universal  suffrage.  This  teaching  need 
not  be  extensive,  but  it  must  be  very  sound  and  at  the  same  time  on  a  very 
high  plane.  We  must  maintain  by  public  education  the  good  qualities 
of  our  national  spirit  and  correct  its  faults. 


26]  ANTECEDENT   INFLUENCES  47 


CHAPTER  III* 

ANTECEDENTS  OF  THE  PHILOSOPHY  OF  LAW 
IN   FRANCE 

THREE  MAIN  INFLUENCES  —  THE  STOIC  INFLUENCE 
—  THE  CHRISTIAN  IDEA  OF  LAW  —  THE  BEGINNING  OF 
DESCARTES'S  INFLUENCE  —  DESCARTES,  LOCKE,  AND 
ROUSSEAU  —  THE  PRINCIPLE  OF  UNLIMITED  PERFEC- 
TIBILITY —  A  NEW  RESULT  OF  FREEDOM  —  THE  INFLU- 
ENCE OF  LOCKE  —  EMPHASIS  ON  HUMAN  LIBERTY. 

§  26.  Three  Main  Influences.  The  legal  philosophy 
of  which  the  Revolution  was  the  application  was  sub- 
ject to  three  diverse  influences,  those  of  Stoicism,  of 
Christianity,  and  of  English  sensationalism  ;  but  these 
influences  did  not  rob  it  of  its  originality. 

§  27.  The  Stoic  Influence.  The  Stoic  and  Platonic 
influence  may  be  seen  in  the  pages  with  which  Montes- 
quieu prefaced  the  first  book  of  his  "Esprit  des  Lois," 
although  he  made  no  use  of  it  in  the  following  books. 
Rousseau  demonstrated  the  insufficiency  of  that  kind 
of  metaphysics.  To  define  the  laws  of  the  necessary 
relations  which  are  derived  from  the  nature  of  things, 
was  to  define  only  natural  laws,  and  to  disregard  social 
laws,  which,  ideally,  are  free  relations  of  wills.  To  say 
that  law  is  "reason  governing  all  the  peoples  of  the 
earth"  was  to  hold  to  an  abstract  formula  which  could 
furnish  no  foundation  for  real  law  —  but  which  might 
even  become  a  vindication  of  despotism  in  those  who 

*  [This  and  the  following  chapter  =  chapters  vi  and  vii,  livre  i,  of 
Fouillée  s  book.  —  Ed.] 


48  NATIONAL   CHARACTERISTICS    [  Ch.  Ill 

make  professions  of  representing  reason  and  truth. 
Furthermore,  although  admitting  these  general  defini- 
tions and  these  old-fashioned  commonplaces,  the  French 
democratic  school,  in  its  philosophy  of  law,  sought  to 
derive  reason  from  liberty  itself,  and  universal  law  from 
a  positive  agreement  among  individual  wills.  If  the 
Stoic,  Roman  spirit  persists  in  the  spirit  of  the  Revo- 
lution, whose  true  nature  it  has  sometimes  even  changed, 
at  least  it  has  been  outrun,  and  merged  in  quite  dif- 
ferent inspirations. 

§  28.     The  Christian  Idea  of  Law.     The  same  may  be 
said    of    Christianity,    to    which    some   have    tried    to 
trace   whatever   is   purest   in   the   French    Revolution. 
Undoubtedly   Christianity,  by   expanding   the   idea   of 
universal  brotherhood  (already  familiar  to  the  Stoics), 
and  by  exhibiting  more  clearly  the  moral  greatness  of 
humanity,  bestowed  upon  man  an  inestimable  value; 
but  this  after  all  was  only  a  borrowed  value  coming  to 
him  from  on  high.     The  same  principle  which  concedes 
it  to  us  takes  it  away,  for  if  the  worth  of  man  comes 
wholly  from  God,  then  he  is  worthless  on  his  own  account, 
and  the  merit  which  he  seems  to  acquire  is  a  free  gift 
for  which  he  deserves  no  credit.     The  philosophy  of  the 
1700s  rejected  this  idea  of  attributive  value,  this  super- 
natural origin  of  man's  titles,  and  demanded  that  man 
be  respected  for  his  humanity,  not  for  the  divine  grace 
of  which  he  is  the  object;    furthermore,  it  sought   to 
bring  down  the  divine  principle  into  man,  to  consider 
man  as  divine  in  and  through  himself.     This  is  what 
was  later  called  "the  divinity  immanent  in  man,"  sub- 
stituted   for    the    dogma    of    a    transcendent    divinity. 
Under  Christianity,  human  liberty  is  limited  by  grace; 
it  is,  indeed,  itself  a  work  of  grace.     Moreover,  as  it  is  a 
cause  of  evil  as  well  as  of  good,  its  significance  is  only  in 
its  acts  and  not  in  itself;   it  is  a  means  and  not  an  end, 


§28]  ANTECEDENT    INFLUENCES  49 

the  idea  of  eternal  salvation  or  of  eternal  damnation 
necessarily  subordinates  liberty  to  interest  of  eternity. 
As  to  equality,  it  is  purely  religious;  still,  we  may  not 
say  that  men  are  truly  equal  even  before  God,  for  grace 
is  unequally  allotted.  The  workers  of  the  last  hour  are 
more  generously  treated  than  those  of  the  first  ;  equality 
of  deeds,  even  of  deserts,  does  not  establish  a  real 
equality  before  the  sovereign  judge.  For  still  stronger 
reasons,  there  is  no  equality  of  rights  in  His  eyes,  in  that 
God  owes  nothing  to  man,  and  man  has  no  rights,  prop- 
erly so  called,  before  Him.  In  relation  to  other  men,  a 
right  implies  a  claim;  and  here  again  Christianity 
recognizes  hardly  anything  but  duties.  It  dwells  above 
all  on  patience,  resignation,  and  martyrdom;  it  turns 
the  other  cheek  to  the  oppressor.  We  may  add  that 
the  very  idea  of  grace  involves  that  of  inequality, 
because  it  implies  something  arbitrary;  equality  and 
favor  are  reciprocally  exclusive.  Many  are  called  but 
few  chosen;  election  signifies  a  gift  to  some  which  is 
refused  to  others.  How  could  this  inequality,  thus 
erected  into  a  dogma,  fail  to  prevail  in  the  social  order, 
where  all  was  hierarchy?  As  there  are  nobles  and  knaves 
in  the  kingdom  of  grace,  so  m.uch  the  more  must  there 
be  in  the  kingdoms  of  the  earth.  Fraternity  even,  a 
lofty  conception  of  which  is  predominant  in  Chris- 
tianity, rests  on  two  principles  foreign  to  the  modern 
mind;  first,  on  the  fatherhood  of  God,  a  mystical,  theo- 
logical principle,  and  second,  on  the  fatherhood  of 
Adam,  a  purely  material  and  historical  principle.  Theo- 
logians do  not  hold  to  the  natural,  moral  conclusion  that 
a  supposedly  rational  and  practically  free  being,  what- 
ever his  celestial  or  his  terrestrial  origin,  is  by  that  fact 
a  brother  of  every  free  and  rational  being.  Christian 
brotherhood  extends  only  to  the  elect,  and  like  heaven 
itself  is  closed  to  reprobates,  refusing  to  heal,  or  even 


50  NATIONAL   CHARACTERISTICS    [Ch.  Ill 

to  love  them.  Justice  under  Christianity  rests  in  part, 
like  fraternity,  on  a  carnal  and  material  principle.  As 
a  consequence  of  original  sin,  justice  and  injustice  are 
in  the  blood;  and  individual  responsibility  is  absorbed 
in  a  kind  of  collective  responsibility,  a  kind  of  blood 
relationship.  Finally,  ideas  of  progress  and  of  perfec- 
tibility did  not  yet  exist  in  pure  Christianity,  for  which 
the  earth  was  only  a  transitory  place  of  probation  and 
exile.  The  Middle  Ages,  with  eyes  fixed  upon  the  life 
to  come,  professing  a  certain  disdain  for  the  present 
stage  of  existence,  strove  for  indifference  to  the  happiness 
which  might  here  be  enjoyed,  and  to  the  progress  which 
might  here  be  made.  Cannot  one  become  sanctified  in 
any  social  sphere?  That  is  sufficient;  for  the  rest,  let 
us  wait  for  death.  Even  philosophical  speculations  were 
all  directed  towards  that  mystical  region  which  is 
beyond  this  world  and  above  humanity.  For  all  these 
reasons,  the  worth  of  the  individual  remains  religious 
rather  than  civil  and  political.  According  to  the  old  con- 
ception the  individual,  though  becoming  a  center  and 
an  object  of  love  in  the  spiritual  and  celestial  city,  as 
a  civilian  is  absorbed  in  the  State;  he  is  outside  the  civil 
authority  only  in  his  religious  conscience,  which  itself  is 
subject  to  religious  control. 

§  29.  The  Beginning  of  Descartes^ s  Influence.  We 
know  how,  in  the  1500s,  the  abuse  of  this  authority  led, 
at  the  Reformation,  to  a  reaction  in  favor  of  the  indi- 
vidual conscience.  Then  philosophy,  distinguishing  little 
by  little  the  domain  of  faith  from  that  of  knowledge, 
declared  through  Descartes  that  the  testimony  of  the 
individual  was  the  sole  guide  in  research,  whether 
philosophical  or  scientific.  This  is  as  much  as  to  say 
(and  it  is  a  capital  principle)  that,  in  the  intellectual 
order,  the  freedom  of  a  reasonable  being  finds  its  rule 
and  its  law  within  itself;    that  union  and  equality  of 


§29]  ANTECEDENT   INFLUENCES  51 

liberties  can  engender  a  true  authority;  or,  in  other 
words,  that  freedom  of  speculation,  far  from  ending  in 
intellectual  anarchy,  should  finally  lead  to  order  and  a 
union  of  minds  in  the  republic  of  learning.  At  the  same 
time  Descartes,  whether  right  or  wrong,  represented 
intellectual  affirmation  as  an  act  of  will,  assuming  that 
the  will  is  not  essentially  indifferent  and  arbitrary,  but 
that  it  is  rather  in  natural  harmony  with  the  truth, 
provided  that  it  acts  without  hindrance.  Descartes 
everywhere  subordinated  intelligence  to  will,  even  in 
the  world's  first  cause,  because  to  his  mind  will  was  the 
essence  of  being,  of  good,  and  of  perfection. 

§  30.  Descartes,  Locke,  and  Rousseau.  The  philoso- 
phy of  the  1700s,  faithful  to  Descartes's  true  method, 
and  inspired  at  the  same  time  by  Locke,  applied  to  civil 
and  political  questions  the  modern  principle  which  seeks 
to  found,  authority  on  freedom  itself.  Knowledge  had 
been  seen  to  organize  and  regulate  itself,  under  a  kind  of 
democratic  régime,  all  the  better  because  it  was  free, 
and  to  become  universal  in  the  end  in  the  same  degree 
as  it  had  been  individual  in  its  origin.  The  question  was 
raised  whether  freedom,  in  the  social  as  in  the  scien- 
tific order,  could  not  of  itself  create  authority,  and  thus 
become  a  law  to  itself;  in  short,  whether  complete  har- 
mony among  all  men  might  not  grow  gradually  out  of 
perfect  freedom  for  every  man.  Rousseau  was  the 
first  to  formulate  —  and  he  did  it  admirably  —  the 
problem  of  civil  and  political  rights,  which  is  at  the  same 
time  the  problem  of  natural  law:  "To  find  a  form  of 
association  which  defends  and  protects  with  all  the 
collective  power  the  person  and  the  property  of  each 
associate,  and  by  wihch  each,  although  uniting  with 
all  the  others,  is  nevertheless  subject  only  to  himself, 
and  remains  as  free  as  before."  The  human  will  thus 
tends  to  become  the  first  principle  of  the  whole  social 


52  NATIONAL   CHARACTERISTICS    [  Ch.  Ill 

order.     Descartes  had  maintained  that  in  God  all  neces- 
sary truth  issues  from  a  free  will,  and  that  necessity  is 
consequently  an  indirect  expression  of  liberty.     Simi- 
larly and  with  greater  probability,  may  we  not  say  that, 
in  the  social  order,  this  sacred  necessity  which  we  call 
law,   instead   of  having  a  mystical   and   metaphysical 
origin,  is  simply  the  abstract  expression  of  the  general 
will?     May  it  not  be  merely  the  ideal  agreement,  the 
common  direction,  the  mutual  guaranty  of  all  individual 
wills?    This  is  the  profound  conception  by  means  of 
which  the  school  of  Rousseau  referred  law  to  will  respect- 
ing itself  and  asserting  itself.     Mirabeau,  a  disciple  of 
Jean-Jacques,  remained  faithful  to  his  master  in  defin- 
ing law  as  "the  inviolability  of  liberty,"  adding  that 
"law  is  the  sovereign  of  the  world."    As  to  the  moral 
and  metaphysical  consequences  of  this  doctrine,  these 
were  summed  up  by  Hegel  when  he  said,  "-Rousseau 
declared  that  will  is  the  essence  of  man;    this  principle 
is  a  transition  to  the  philosophy  of  Kant,  of  which  it  is 
the  foundation."    At  the  same  time   Rousseau  had  a 
glimpse  of  the  theory  of  the  social  organism,  which  he 
was  unable  to  reconcile  with  that  of  the  social  contract.^ 
§  31.     The  Principle  of   Unlimited  Perfectibility.     In 
conceiving  of  the  future  of  the  world  as  resting  hence- 
forth   upon    human    liberty,    the    French    philosophers 
found  themselves  logically  impelled  to  regard  this  as  a 
principle  of  unlimited  perfectibility.     Of  this  character 
of  infinity  which  Descartes  ascribed  to  the  will  of  man, 
and  which   he  regarded   above  all  as  a  metaphysical 
attribute,   the    1700s   made,  so  to  speak,   an   historical 
attribute,  by  conceiving  it  as  an  infinity  of  development 
and  progress,  extending  through  space  and  time.    The 
principle    of    "unlimited  perfectibility,"  already  in  the 
germ  in  Descartes  and  Pascal,  and  clearly  formulated  by 

1  On  this  point,  see  our  "Science  Sociale  Contemporaine." 


§31]  ANTECEDENT   INFLUENCES  53 

Turgot  and  Condorcet,  was  to  revivify  not  only  the 
philosophy  of  history,  but  also  that  of  law.  The  reign 
of  liberty,  equality,  and  fraternity,  postponed  by  Chris- 
tianity to  another  life,  and  awaited  as  the  gift  of  God, 
the  1700s  hoped  for  in  this  world,  and  demanded  of 
man;  heaven  came  down  to  earth  as  an  ideal  which 
to  be  sure  could  not  be  attained  but  which  might  always 
be  more  and  more  nearly  approximated. 

§  32.  A  New  Result  of  Freedom.  Finally,  the  theory 
of  moral  and  scientific  progress  could  but  bring  in  its 
wake,  as  a  social  consequence,  the  conception  of  eco- 
nomic and  political  progress.  Bring  the  idea  of  freedom 
down  from  the  heights  of  abstract  metaphysics  to  the 
domain  of  positive  reality,  and  it  w^ill  take  on  a  new 
form  and  a  new  name;  it  will  be  called  property.  Every 
question  of  pure  legal  right  turns  out  to  be  a  question 
of  property.  Now  it  was  in  France,  again,  that  political 
economy  was  developed  ;  the  best  distribution  of  rights 
among  all  men  called  for  the  best  distribution  of  wealth. 
It  was  the  same  problem  carried  over  from  the  moral 
to  the  material  order.  It  is  important  here  to  notice  a 
fact  often  forgotten  or  disregarded;  it  is  that  the  idea 
of  property  and  that  of  legal  right  always  move  side 
by  side,  both  equally  vague  in  Christianity,  and  both 
quite  distinct  in  the  philosophy  of  the  1700s,  as  if  they 
were  only  two  aspects  of  a  single  idea.  What  we  call 
to-day  the  right  of  property,  a  natural  right  independent 
of  civil  or  religious  authority,  is  a  wholly  modern  con- 
ception, opposed  by  philosophers  to  the  old  tradition  of 
jurists  and  theologians.^ 

2  On  this  point,  read  in  Janet's  "Histoire  de  la  Science  Politique"  the 
doctrines  of  the  Fathers  and  the  doctors  of  the  Church.  One  cannot 
fail  to  conclude  with  him  that  "the  doctrine  of  a  right  of  property,  prior 
to  and  superior  to  the  sovereign  will  of  the  State,  is  an  entirely  modern 
and  revolutionary  doctrine,  which  dates  historically  from  the  three 
revolutions,  English,  American,  and  French,  and  which  is  first  met  in 
theoretical  form  ill  Locke  and  the  French  economists."     "The  earth," 


54  NATIONAL   CHARACTERISTICS    [  Ch.  Ill 

§  33.  The  Influence  of  Locke.  It  was  Locke,  and  fol- 
lowing him  Quesnay,  Mercier  de  la  Rivière,  and  most  of 
our  economists,  who  introduced  between  liberty,  that 
invisible  property,  and  property,  that  liberty  made 
visible,  the  middle  term  of  labor.  It  was  at  this  point, 
especially,  that  French  philosophy  felt  the  influence  of 
Locke,  which  combined  with  that  of  Stoicism  and 
of  Christianity.  Nevertheless  French  philosophy  pre- 
served its  own  original  character.  Locke,  like  all  the 
English,  was  preoccupied  chiefly  with  interest;  freedom 
was  above  all  a  means  of  securing  the  greatest  total 
utility,  either  for  the  individual  or  for  the  State.  The 
French,    in    appropriating     English    ideas,     generalize 

said  St.  Ambrose,  "was  given  in  common  to  the  rich  and  the  poor;  why, 
ye  rich,  do  you  arrogate  property  to  yourselves  alone?  Nature  has 
given  as  common  property  all  things  for  the  use  of  all  men,  has  created 
the  common  right;  usurpation  has  made  private  right."  The  distinction 
between  rich  and  poor  seemed  to  the  early  doctors  neither  more  nor  less 
unjust  than  that  between  master  and  slave.  "There  is  neither  slave 
nor  master  before  God,"  said  Lactantius;  "there  are  no  poor  before 
God  except  those  who  are  wanting  in  justice,  nor  rich  except  those  who 
abound  in  virtue." 

"By  what  law,"  said  St.  Augustine,  "does  each  man  possess  that  which 
he  possesses?  Is  it  not  human  law?  For,  according  to  divine  law, 
God  made  the  rich  and  the  poor  from  the  same  claj',  and  it  is  one  earth 
which  bears  them.  It  is  therefore  by  human  law  that  one  may  say, 
This  city  is  mine,  this  house  is  mine,  this  slave  is  mine.  But  human 
law  is  nothing  but  imperial  law.  Why?  Because  it  is  through  em- 
perors and  kings  that  God  distributes  human  law  to  human  kind.  Take 
away  the  law  of  the  emperors  and  who  will  dare  say.  This  city  is  mine, 
this  slave  is  mine,  this  house  is  mine?"  (See  Ambrose,  "De  Ofificiis"  I: 
xxviii;  Lactantius,  "Divine  Institutes,"  V:  xiv;  St.  Augustine,  "In 
Evangelium  Johannis  Tractatus,"  vi,  25,  26.)  Gratian's  decree  declares 
that  "according  to  natural  law,  all  things  are  common  among  men." 
(pars  I,  dist.  vii).  St.  Thomas  adopts  this  orthodox  principle  and  is 
compelled  to  attribute  property  to  an  invention  of  human  reason,  "ad 
inventionem  rationis  humanae,"  which  adds  private  possession  to  natural 
right  on  condition  that  tise  be  in  common  ("Summa  Theologiae,"  II,  2, 
q.  Ixvi,  a.  1).  Finally  we  know  Bossuet' s  doctrine:  "Take  away  govern- 
ment, and  the  earth  and  all  its  riches  are  as  common  to  men  as  air  and 
light.  .  .  .  According  to  this  primitive  law  of  nature,  no  one  has  a  private 
right  to  anything  whatsoever,  and  everything  is  the  property  of  all  .  .  . 
The  right  of  property  is  born  of  government,  and  in  general  every  right 
should  proceed  from  public  authority."  ("Politique  Tirée  de  l'Écriture 
Sainte,"  Book  I,  art.  iii,  prop.  4.) 


§33]  ANTECEDENT   INFLUENCES  55 

them,  apply  them  to  all  human  kind,  and  furthermore, 
substitute  a  moral  for  a  purely  utilitarian  sense.  They 
demand  liberty  and  equality  for  what  they  are,  and  not 
for  any  material  interest  which  might  be  superior  to 
them.  Moreover,  the  French  revolutionary  school  was 
from  the  first  aware  of  a  difference  between  the  premises, 
notwithstanding  a  similarity  in  the  conclusions.  Con- 
dorcet,  for  example,  found  fault  with  the  American 
Constitution  "for  having  taken  as  its  principle  identity 
of  interests  even  more  than  equality  of  rights."  "The 
principles  upon  which  the  constitution  and  laws  of 
France  have  been  constructed,"  he  says  again,  "are 
purer,  more  profound,  and  more  precise  than  those  which 
guided  the  Americans;  the  French  have  escaped  much 
more  completely  from  the  influence  of  every  kind  of 
prejudice.  Nowhere  has  equality  of  rights  been  dis- 
placed by  identity  of  interests,  which  is  only  its  weak  and 
hypocritical  supplement."' 

§  34.  Emphasis  on  Human  Liberty.  In  conclusion, 
in  the  three  doctrines  which  served  as  antecedents  to 
our  philosophy  of  law,  the  Stoic,  the  Christian,  and  the 
English,  human  liberty  was  always  regarded  as  a  means 
rather  than  an  end.  The  Stoics  finally  merged  it  in 
universal  reason,  the  Christians  in  divine  grace  and 
future  salvation,  the  English  school  in  personal  or 
general  interest.  In  French  philosophy,  on  the  other 
hand,  a  new  tendency  is  apparent  from  Descartes  to 
Turgot,  Condorcet,  and  Rousseau,  which  finds  in  human 
liberty  an  end  in  itself,  to  be  cherished  for  its  own  beauty, 
for  its  limitless  fecundity,  and  in  some  sort  for  the 
infinite  progress  which  it  embodies. 

'  "Tableau  Historique  des  Progrès  de  l'Esprit  Humain,"  ninth  epoch. 


56  NATIONAL   CHARACTERISTICS     [  Ch.  IV 


CHAPTER  IV 

THE    IDEA    OF   LAW    IN   THE   FRENCH    PHIL- 
OSOPHY  OF  THE    1800s 

MODERN  CRITICISM  OF  THE  IDEA  OF  LAW  —  THE 
DOCTRINE  OF  SAINT-SIMON- — AUGUSTE  COMTE,  EXPO- 
NENT OF  POSITIVISM — THE  DOCTRINE  OF  FOURIER  — 
PHILOSOPHICAL  IDEAS  OF  PROUDHON  • —  THE  SPIRITUAL- 
ISTIC SCHOOL  —  LIMITATIONS  ON  THE  DOCTRINE  OF 
MORAL  FREEDOM  AND  EQUALITY  —  THE  NEED  OF  A 
SYNTHESIS  OF  DOCTRINES. 

§  35.  Modern  Criticism  of  the  Idea  of  Law.  Let  us 
pass  now  from  the  1700s  to  the  1800s,  and  rapidly  trace 
the  later  transformations  of  the  French  theory  of  rights 
through  contemporary  schools  of  philosophy.  We  shall 
see  its  inquiries  becoming  at  once  more  definite  and 
more  difficult,  until  now  they  demand  a  fresh  examina- 
tion, and  if  possible,  a  new  solution. 

§36.  The  Doctrine  of  Saint-Simon.  The  philosophers 
of  our  century  who  have  either  criticized  or  defended 
the  idea  of  rights  bequeathed  by  the  Revolution  may  be 
divided  into  two  groups:  one,  the  partisans  of  moral  and 
historical  fatalism,  and  the  other,  the  partisans  of  free- 
dom in  the  conscience  and  in  history.  The  former  were 
dissenters  from  the  philosophical  school  of  Rousseau  and 
the  Revolution,  First  among  them  appears  Saint-Simon , 
whose  influence,  although  nowhere  widely  avowed,  is 
still  widely  but  feebly  felt.  Against  the  idea  of  individual 
liberty  he  set  the  old  conception  of  social  authority, 
the  source  of  which  he  placed  successively  in  science  (a 


§36]  THE  IDEA  OF  LAW  57 

doctrine  out  of  which  Positivism  was  to  grow),  then  in 
industry,  and  finally  in  a  new  religion  "capable  of  com- 
pelling the  obedience  of  its  followers  to  the  precept  of 
neighborly  love."  The  school  of  Saint-Simon  thus 
approached  the  theocratic  school,  which  is  hostile  to  the 
idea  of  freedom  and  equality. 

§  37.  Auguste  Comte,  Exponent  of  Positivism.  Posi- 
tivism, an  outgrowth  of  Saint-Simonism,  rejected  in  its 
turn  the  idea  of  moral  freedom.  A  right,  properly  so- 
called,  is  for  Auguste  Comte  and  his  successors,  like 
absolute  duty,  a  metaphysical  entity,  because  it  includes 
another  conception  of  the  absolute,  a  conception  of 
"cause"  acting  on  its  own  account  and  worthy  of 
respect  on  its  own  account.  Abandoning,  then,  the 
tradition  of  the  1700s,  Auguste  Comte  refuses  all  con- 
sideration of  the  rights  of  man.  "Positivism  accords 
to  no  man  any  right  except  that  of  always  doing  his 
duty.  .  .  .  The  idea  of  rights  should  be  banished  from 
the  domain  of  politics,  as  should  that  of  cause  from  the 
domain  of  philosophy.  .  .  .  Positivism  admits  of 
nothing  but  duties,  of  all  men,  towards  all  men;  for  its 
point  of  view,  always  social,  is  inconsistent  with  any 
idea  of  rights,  which  are  always  individualistic.  .  .  . 
Any  human  right  is  absurd  as  well  as  immoral.  And 
since  there  are  no  divine  rights,  this  idea  should  be  com- 
pletely obhterated,  as  merely  relative  to  the  preliminary 
stage,  and  wholly  incompatible  with  the  final  stage  (of 
humanity),  which  recognizes  nothing  but  duties  according 
to  functions.''  ^  We  see  that  it  was  Auguste  Comte,  the 
founder  of  "sociology,"  who  in  the  interest  of  social 
power  formulated  with  perfect  logic  a  denial  of  indi- 
vidual rights  —  a  denial  disguised  under  the  idealism 
of  many  German  philosophers,  and  repeated  also  by  the 
English  school,  which  did  not  deduce  from  it,  however, 

1  "Cours  de  Philosophie  Positive,"  vi,  p.  454,  2d  ed. 


58  NATIONAL   CHARACTERISTICS     [Ch.  IV 

the  same  consequences  as  to  authority.  Comte  had  an 
infalHble  scent  for  metaphysical  ideas  hidden  under  the 
protecting  shelter  of  moral  or  social  expressions,  and  he 
has  shown  rare  penetration  by  recognizing  in  the  idea 
of  rights  the  idea  of  cause  —  of  free  cause,  indeed  — 
in  disguise. 

§  88.  The  Doctrine  of  Fourier.  In  opposition  to  the 
authoritarian  schools  of  Saint-Simon  and  Comte,  there 
arose,  in  the  very  bosom  of  socialism,  the  more  liberal 
and  more  individualistic  school  of  Fourier.  Fourier 
bases  all  rights,  as  well  as  all  political  economy,  on  free 
association.  In  this  he  approaches  Rousseau,  for  the 
mutual  "attraction"  of  men  which  leads  them  into 
association  in  the  absolutely  free  exercise  of  their  prefer- 
ences is  not  without  analogy  to  the  will  which,  according 
to  Rousseau,  unites  men  in  a  freely  accepted  contract. 
But  is  true  association,  as  Fourier  thinks,  that  of  pas- 
sions drawing  together  in  search  of  their  common  satis- 
faction? Or  is  it,  as  Rousseau  had  said,  that  of  liberties 
uniting  for  the  protection  of  their  rights?  If,  contrary 
to  Fourier's  expectation,  the  passions,  left  to  themselves, 
do  not  exhibit  that  internal  rule  of  harmony  upon 
which  he  counted,  must  he  not  return  for  his  basis  of 
rights  to  some  other  rule,  voluntarily  accepted  and 
mutually  guaranteed?  We  also  see  in  France  the  fatal- 
istic schools  passing  gradually  from  the  cult  of  authority 
to  that  of  freedom,  maintaining  meanwhile  their  doubt 
of  the  existence  of  moral  and  metaphysical  freedom. 

§  39.  Philosophical  Ideas  of  Proudhon.  In  contrast 
with  these  schools,  others  arose  which  developed  more  or 
less  faithfully  the  thought  of  the  French  Revolution. 
One  of  the  most  important  of  Rousseau's  continuers  was 
Proudhon,  whose  philosophical  ideas  have  not  always 
been  appreciated  at  their  true  worth.  The  author  of 
"Justice  in  the  Revolution  and  in  the  Church,"  with 


§39]  THE   IDEA   OF   LAW  59 

whom  one  may  connect  the  school  of  "independent 
morality,"  strove  to  bring  into  the  light  again  that 
fundamental  principle  of  the  Revolution,  the  dignity 
of  man,  rational  and  free,  sufficient  in  himself  to  deter- 
mine his  duty  and  his  rights,  without  reference  to  meta- 
physical or  religious  doctrines.  In  this  also,  Proudhon 
and  the  advocates  of  ethical  independence  continued  the 
work  of  Kant.2  "A  disciple  at  once  of  Comte  and  of 
Kant,"  as  he  said  of  himself,  Proudhon  sought  to  found 
man's  title  to  respect  upon  a  fact.  "Man,"  he  said,  "by 
virtue  of  his  reason,  can  feel  his  dignity  in  the  person  of 
his  fellow  man  as  well  as  in  himself,  and  can  confirm 
their  identity  in  this  regard.  .  .  ,  Rights,  for  each  one, 
are  identical  with  the  faculty  of  exacting  from  others  a 
respect  for  human  dignity  in  his  own  person."  But 
Proudhon  did  not  sufficiently  explain  this  faculty,  whose 
existence  he  affirmed,  since  he  limited  himself  to  the 
vague  term,  to  feel  his  dignity.  When  he  undertook 
to  give  a  more  precise  meaning  to  this  same  dignity,  he 
sometimes  contented  himself  with  relating  it  to  liberty 

*  Proudhon  upholds  the  human  and  immanent  character  of  law  and 
justice.  "I  dismiss  all  theologism,  every  theory  of  the  absolute.  .  .  . 
Justice  is  human,  wholly  human,  and  only  human;  we  do  it  an  injury 
if  we  relate  it,  closely  or  remotely,  directly  or  indirectlj',  to  a  principle 
prior  or  superior  to  humanity.  Let  philosophy  busy  itself  as  it  will 
with  the  nature  of  God  and  of  His  attributes;  this  may  be  its  duty  and 
its  right.  I  maintain  that  this  idea  of  God  has  no  place  in  our  juridical 
constitutions  any  more  than  in  our  treatises  on  political  economy  or  on 
algebra.  The  theory  of  practical  reason  rests  on  its  own  foundations; 
it  neither  presupposes  nor  requires  the  existence  of  God  or  the  immor- 
tality of  the  soul;  it  would  be  false  if  it  had  need  of  such  support."  We 
know  the  thesis  which  was  later  upheld  by  the  partisans  of  independent 
ethics  in  a  journal  devoted  entirely  to  this  problem.  "The  right  of  man 
in  relation  to  man,"  continues  Proudhon,  "can  only  be  the  right  to  the 
respect  of  his  fellows;  but  what  shall  determine  this  respect  in  the  heart? 
The  fear  of  God,  says  the  ancient  lawgiver.  The  interest  of  society, 
answer  the  modern  innovators,  whether  atheists  or  not.  This  is  still 
to  place  the  title  to  respect,  and  therefore  the  principle  of  law  and  jus- 
tice, outside  of  man,  and  consequently  to  deny  this  principle  itself,  to 
destroy  its  condition  'sine  qua  non,'  its  innateness,  its  immanence." 
("La  Justice  dans  la  Révolution  et  dans  l'Eglise,"  i,  p.  84.)  It  remains 
to  explain  the  true  basis  of  this  respect  due  to  a  man  from  his  fellow  man. 


60  NATIONAL   CHARACTERISTICS     [  Ch.  IV 

without  distinguishing  his  doctrine  at  this  point  from 
current  theories,  and  sometimes  he  seemed  to  reduce  it 
to  a  consciousness  of  force.  We  know  what  dangerous 
concessions  he  himself  made  to  force  in  his  theory  of  war 
and  peace.  In  short,  Proudhon  sought  to  base  rights 
on  a  fact  of  consciousness,  on  "the  feehng  of  dignity"; 
but  a  feehng  is  insufficient  to  explain  the  character  of 
obhgation  and  necessity  with  which  he  clothed  the  idea  of 
rights.  Does  it  not  seem  that  a  right,  instead  of  being 
merely  a  fact,  is  on  the  contrary  an  idea  extending  beyond 
and  rising  above  the  fact  which  it  dominates  and 
judges? 

§  40.  The  Spiritualistic  School.  The  Spiritualistic 
school,  including  Maine  de  Biran,  Royer-Collard,  Victor 
Cousin,  and  Joufïroy,  had  developed  under  various  forms, 
too  often  superficial,  the  doctrine,  traditional  in  France, 
which  finds  for  rights  and  dignity  a  foundation  in  free 
will.  A  striking  instance  of  this  w^ill,  for  Maine  de 
Biran,  is  exhibited  in  the  effort  of  the  act  of  labor  ;  whence, 
if  he  had  been  concerning  himself  with  social  questions, 
he  might  have  deduced  the  consideration  that  labor, 
which  is  personal  force  in  action,  must  be  the  basis  of 
the  right  of  personal  property,  or  more  generally  of  all 
rights.  For  Royer-Collard  and  Victor  Cousin,  will 
resides  in  the  power  of  choice  between  good  and  evil, 
that  is,  in  the  free  judgment,  from  which  duty  and  right 
proceed  simultaneously,  each  responsible  for  the  ful- 
fillment of  its  own  destiny.  "What  is  my  right  to  your 
respect  but  your  duty  to  respect  me  because  I  am  a  free 
being?  But  you  yourself  are  a  free  being,  and  the  basis 
of  my  right  and  of  your  duty  become  for  you  the  basis 
of  an  equal  right,  and  for  me  of  an  equal  duty.  I  say 
equal  in  the  strictest  sense  of  the  word,  for  freedom,  and 
only  freedom,  is  equal  to  itself.  ...  It  is  not  possible 
to  conceive  of  any  difference  between  the  free  will  of  one 


§40]  THE   IDEA  OF  LAW  61 

man  and  that  of  another."^  Such  is  the  theory  which 
we  find,  with  many  shades  of  difference,  both  among  the 
immediate  successors  of  Victor  Cousin  and  among  the 
majority  of  the  contemporary  SpirituaHsts.  The  most 
recent  doctrine  of  the  neo-Kantians  does  not  differ  from 
it  notably  on  the  whole.  Phenomenistic  criticism  also 
bases  rights  upon  liberty,  which,  from  that  point  of  view, 
consists  essentially  in  free  will,  the  ambiguous  power  of 
opposites.  "The  debit  and  credit  relations  of  reciprocal 
agents,  that  is  to  say,  right  and  duty  as  correlative 
terms,  .  .  .  are  theoretically  summed  up,  on  either 
side,  in  terms  of  dignity — 'that  is,  of  liberty,  of  person- 
ality itself  —  and  of  respect  for  that  dignity."  ^ 

§  41.  Limitations  of  the  Doctrine  of  Moral  Freedom 
and  Equality.  From  this  simple  sketch  of  the  principal 
theories  of  our  century,  we  see  that  the  doctrine  that 
rights  rest  for  their  foundation  upon  moral  liberty  and 
equality  has  become  almost  classical  in  France;  and 
to  its  tradition  the  various  schools  of  our  country,  with 
the  exception  of  the  Positivists,  return  by  more  or  less 
circuitous  paths.  We  must  believe,  however,  that  this 
conception  of  rights  contains  elements  of  incompleteness 
and  obscurity,  since  it  falls  so  far  short  of  bringing  minds 
together  not  only  in  Germany  and  England,  but  even 
in  France,  where  it  nevertheless  furnishes  a  foundation 
for  the  popular  philosophy  and  for  the  philosophy  of 
the  universities.  Unquestionably,  there  are  very  many 
unsolved  difficulties  in  this  doctrine.^ 

»  "Justice  et  Charité." 

*  Renouvier,  "Science  de  la  Morale,"  ii,  480. 

s  Since  this  book  was  not  intended  as  a  history  of  the  philosophy  of 
law,  but  only  as  a  study  of  what  is  fundamental,  and  particularly  of 
what  is  new,  in  the  modern  ideas  of  law,  we  have  been  unable  to  review 
the  various  less  original  and  less  specific  theories  which  have  sprung  up 
outside  of  Germany,  England,  and  France.  Italy,  however,  that  land 
of  Roman  jurists,  has  rendered  great  services,  even  in  our  own  time, 
to  the  philosophy  of  law,  which  is  still  honored  and  developed  there. 


62  NATIONAL  CHARACTERISTICS     [  Ch.  IV 

§  42.  The  Need  of  a  Synthesis  of  Doctrines.  The 
need  is  now  felt  of  a  more  synthetic,  less  simple  idea, 
uniting  if  possible  the  elements  of  truth  contained  in 
conflicting  doctrines.  Besides  the  normal  and  rational 
element,  place  should  be  found  for  the  natural,  biological, 
and  historical  elements.  Ideas  of  determinism,  of  organ- 
ism, of  evolution,  of  function,  of  living  force,  and  of 
power,  as  well  as  those  of  individual  and  general  interest, 
should  not  be  eliminated  from  the  discussion.  Me- 
chanics, physiology,  social  science,  and  political  economy 
should  be  united  with  ethics  as  a  foundation  for  a  more 
comprehensive  conception  of  rights,  compatible  with 
both   idealism  and  naturalism. 

(See  the  works  of  Rossi,  Mancini,  Mamiani,  Lombroso,  etc.)  Among 
the  more  recent  studies  may  be  consulted  those  of  Poletti,  Ardigd,  Garo- 
falo  and  Boccardo,  of  E.  Ferri,  Siciiiani,  Puglia,  Vadalà-Papale,  Cogliolo, 
WaiUrain-Cavagnari,  etc.  The  last-mentioned,  in  "Idéale  del  Diritto" 
(Genoa,  1S83),  has  developed  in  particular,  with  dignity  and  exactness, 
the  views  contained  in  our  "Idée  Moderne  du  Droit."  See  also  "L'Idée 
Moderne  du  Droit  d'après  M.  A.  Fouillée,"  by  Regnard  (Brussels,  1880), 
in  which  the  author  tells  of  juristic  studies  in  Belgium. 


(B)     RECENT  PHASES  OF  FRENCH  LEGAL  PHILOSOPHY 
—JOSEPH  CHARMONT 

Chapter       V.    The  Sociological  or  Positivist  School  65 

Chapter      VL    Causes    and    Characteristics    of   a 

Renascence  of  Legal  Idealism 74 

Chapter    VII.    Solidarism  82 

Chapter  VIII.    Pragmatism    99 

Chapter     IX.    Natural  Law  with  Variable  Content  106 

Chapter      X.    Free  Scientific  Research   112 

Chapter     XL    Duguit's  Theory  of  Objective  Law  .  125 

Chapter   XII.    Conflicts   between    Law   and    the 

Individual  Conscience 133 


(B)  RECENT  PHASES  OF  FRENCH  LEGAL 
PHILOSOPHY 

CHAPTER  V 
THE  SOCIOLOGICAL   OR  POSITIVIST  SCHOOL* 

HOW  THE  SOCIOLOGICAL  SCHOOL  WAS  FORMED  — 
EVOLUTION  AND  THE  SOCIAL  SCIENCES  — THE  RELA- 
TION OF  LAW  TO  SOCIETY  AND  THE  INDIVIDUAL— A 
NEW  CONCEPTION  OF  LAW  IS  NEEDED  —  THE  DANGER 
IN   DEFICTENT  IDEALISM  —  THE   USES  OF  IDEALISM. 

§  43.  How  the  Sociological  School  was  Formed.  The 
sociological  school  has  at  first  glance  no  very  well  defined 
character;  it  borrows  from  the  two  preceding  schools  cer- 
tain of  their  conceptions.  Like  the  historical  school,  it 
considers  law  in  its  evolution,  in  its  successive  changes, 
and  connects  these  changes  with  those  which  are  experi- 
enced by  society  itself.  Like  the  Utilitarian  school,  it  sees 
in  institutions  the  means  of  satisfying  social  interests.  In 
Germany  and  England,  it  has  partially  taken  the  place 
of  each  of  the  other  schools,  between  which  it  produces 
a  kind  of  fusion,  in  that  certain  of  those  who  represent 
it  often  belong  also  to  one  or  the  other  of  those  two. 
Thus  Spencer  is  at  the  same  time  a  Utilitarian  and  a 
sociologist.  The  sociological  school  has  been  of  very 
great  importance  in  France,  and  a  Frenchman,  Auguste 
Comte,  was  its  founder. 

*  [Chapters  v-xii  here  —  chapters  v  to  xii  inclusive  of  Charmont's 
"La  Renaissance  du  Droit  Naturel,"  namely  the  entire  substance  of 
that  book  with  the  exception  of  its  four  opening  chapters.  For  this 
author  and  the  work  see  the  Editorial  Preface.  —  Ed.] 


66  RECENT  PHASES  [Ch.V 

Doubtless  it  does  not  admit  of  a  complete  unity  of 
doctrine;  among  opinions  which  seem  to  occupy  a 
common  ground  great  differences  often  exist.  Often 
the  tendencies  themselves  are  opposite.  Spencer,  for 
example,  denied  even  that  he  had  been  influenced  by 
Auguste  Comte,  and  his  extreme  individualistic  ten- 
dencies offer  a  singular  contrast  to  those  of  most  of  the 
sociologists.  Besides  the  school  of  Durkheim  and  the 
devoted  group  of  his  co-laborers  might  be  mentioned 
a  number  of  French  philosophers  who  have  been  more 
or  less  influenced  by  sociological  methods,  and  who 
represent,  so  to  speak,  so  many  intermediary  shades 
between  Positivism  and  rationalism.^  What  is  especially 
characteristic  of  the  sociological  school  is  its  persistent 
effort  to  base  ethics  on  a  scientific  foundation.  It  under- 
takes, according  to  Durkheim,^  "to  integrate  social 
science  with  the  general  system  of  the  natural  sciences." 
This  ambition  is  not  a  new  one  ;  we  know  that  Bentham 
already  aspired  to  be  the  Newton  of  ethics;  but  the 
tendency  here  is  much  more  pronounced.  It  lays  down 
the  method  of  studying  social  facts  in  themselves, 
establishing  them  and  seeking  to  explain  them,  making 
use  at  the  same  time  not  only  of  all  the  processes  of 
observation  but  also  of  historical  research,  of  inquiry, 
and  of  statistics,  in  order  to  ascertain  all  the  conditions 
of  community  life.  This  is,  to  be  sure,  just  what  science 
does.  Is  not  its  object  to  establish  phenomena,  to  con- 
nect them  with  antecedent  phenomena  which  appear  to 
be  related  to  them  as  causes,  to  explain  one  group  by  the 
other? 

§  44.  Evolution  and  the  Social  Sciences.  The  hypo- 
thesis of  evolution  has  thus  been  applied  to  the  social 
sciences,  as  it  had  been  to  the  sciences  of  nature.     It 

1  For  example,  Lévy-Bruhl,  Espinas,  Belot,  and  perhaps  Rauh. 

2  RE,  1888,  p.  29. 


§44]  THE  POSITIVIST  SCHOOL  67 

has  revived  linguistics,  comparative  philology,  and  the 
history  of  religions.  The  institutions  of  the  civilized 
peoples  have  been  regarded  as  the  product  of  selection 
because  the  societies  which  were  not  able  to  discipline 
and  organize  themselves,  which  engaged  in  theft,  violence, 
and  assassination,  were  the  agents  of  their  own  elimina- 
tion. The  various  forms  of  marriage,  by  capture,  by 
purchase,  by  free  contract,  correspond  to  progressive 
stages  in  the  collective  life.  Similarly,  the  social  criminal 
law  has  been  substituted  for  private  vengeance.  The 
transition  from  collective  ownership  to  individual  owner- 
ship is  related  to  the  progress  of  production.^ 

Thus  the  law  results,  as  a  natural  consequence,  from 
the  intervention  exercised  by  society  in  its  own  interest, 
an  intervention  destined  to  terminate  or  to  prevent 
conflicts.  Far  from  assuming  that  the  offense  pre- 
supposes the  law,  and  is  no  more  than  the  sanction  of 
its  violation,  we  must  admit  on  the  contrary,  with  Gas- 
ton Richard,*  that  the  law  has  its  origin  in  the  offense. 
The  point  of  departure  is  prohibitive  intervention 
destined  to  obviate  conflict.  Society,  for  example, 
forbids  its  members  to  take  possession  by  violence  and 
fraud  of  property  already  possessed;  it  punishes  theft, 
pillage,  and  marauding,  and  by  that  very  means  guaran- 
tees the  peaceable  possession  of  wealth  and  creates 
property.^  Moreover,  by  punishing  rape,  abduction, 
infanticide,  or  the  abandonment  of  infants,  it  has 
indirectly   revealed    the   juridical    nature   of  marriage, 

'  "It  has  been  found  in  Canada  that  the  native  inhabitants  who  Hve 
by  hunting  need  the  enormous  area  of  15  square  miles  (3800  hectares) 
per  capita,  in  order  to  live.  Below  this  limit  they  are  decimated  by 
famine.  Now  agriculture  as  it  is  practised  in  western  Europe  can 
support  from  two  to  four  inhabitants  for  each  five  acres  [de  1  à  2  habi- 
tants par  hectare],  that  is  4000  to  5000  times  as  many."  (Charles  Gide, 
"Principes  d'Économie  Politique,"  sixth  éd.,  p.  517,  n.  1.) 

*Gaston  Richard,  "Origine  de  l'Idée  du  Droit,"  p.  54. 

'  Ibid.,  p.  54. 


68  RECENT   PHASES  [  Ch.  V 

implying  the  free  consent  of  the  woman,  and  the  obhga- 
tion  of  parents  towards  their  children.*^  If  we  stop  to 
consider  how  the  juridical  conception  of  contracts  was 
formed,  we  are  led  to  think  that  it  proceeds,  through 
a  conflict  of  interests,  from  measures  taken  to  repress 
falsification  and  fraud,  the  abuse  of  confidence,  swindling, 
the  issue  of  counterfeit  curency;  hence  is  naturally 
deduced  the  validity  of  a  contract  which  is  entered  into 
in  good  faith,  without  fraud  or  violence.'' 

§  45.  The  Relation  of  Law  to  Society  and  the  Individ- 
ual. The  law,  then,  is  the  ensemble  of  the  means  by 
which  each  group  protects  itself  against  disturbances 
aroused  by  certain  of  its  members  or  by  the  hostility 
of  other  groups,  in  the  effort  to  bring  vital  rivalries 
down  to  an  indispensable  minimum.^  By  the  very 
act  of  showing  us  how  society  intervenes  to  defend  itself, 
to  insure  its  preservation  or  its  development,  sociology 
tends  to  give  preeminence  to  the  interest  of  society. 
Auguste  Comte  considered  that,  properly  speaking,  the 
individual  has  no  rights;  he  has  only  duties,  "Every 
man  has  duties,  and  has  duties  towards  all  others;  but 
no  man  has  any  rights  properly  so-called.  No  one 
possesses  any  other  right  than  that  of  always  doing 
his  duty."  ^  We  may  disregard  the  relations  of  indi 
viduals  among  themselves,  for  the  purpose  of  viewing 
in  the  broad  the  relation  of  the  total  mass  of  individuals 
to  itself;  in  this  sense,  society  has  all  the  rights;  the 
individual  has  only  duties.  Not  all  the  Positivists, 
it  is  true,  arrive  at  these  conclusions.  Some  of  them, 
on  the  contrary,  tend  to  place  the  individual  in  opposition 
to  society   as   a  whole.     Certain   formulas   of  Spencer 

•  Ibid.,  p.  55. 

'  Ibid.,  p.  55. 

8  Ibid.,  p.  5. 

i  Auguste  Comte,  "Politique  Positive,"  v.  2,  p.  361. 


§45]  THE   POSITIVIST  SCHOOL  69 

would  lead  us  to  think  that  he,  like  Kant,  admits  the 
natural  rights  of  man.  "Every  man  is  free  to  act  accord- 
ing to  his  desires,  provided  he  does  not  infringe  upon 
the  equal  liberty  of  any  other  man."  ^^  This  principle 
might  seem  to  have  been  borrowed  from  the  Declaration 
of  the  Rights  of  Man;  but  we  must  not  make  this  mis- 
take. The  difference  is  characteristic.  What  is  here 
in  question  is  no  longer  a  rational,  a  priori  principle, 
but  simply  an  idea  founded  upon  this  fact  of  experience, 
that  respect  for  the  individual  is  good  politics,  and  con- 
stitutes the  best  means  society  has  for  preserving  and 
defending  itself. ^^  In  order  to  progress  it  must  bring 
together  strong  individualities;  it  must  take  care  not 
to  stifle  them,  to  paralyze  them,  by  an  excess  of  regula- 
tion, especially  at  the  present  time  when  the  industrial 
system  is  being  substituted  for  the  military  social  system. 
Society  weakens  itself  by  repressing  the  individual. 
But  this  individualism  is  more  than  a  simple  corrective; 
it  is  the  consideration  due  to  that  competition  which 
must  be  reconciled  with  a  respect  for  order.  It  is  none 
the  less  true  because  of  this  that  justice  is  conceived 
and  established  in  the  interest  of  society. ^^  The  develop- 
ment of  this  society,  the  progress  of  the  species,  is  the 
final  goal;  and  everything  will  be  sacrificed  to  this  end. 
"The  poverty  of  the  incapable,  the  distresses  that  come 
upon  the  imprudent,  the  starvation  of  the  idle,  and  those 
shoulderings  aside  of  the  weak  by  the  strong  which 
leave  so  many  'in  shadows  and  in  miseries,'  are  the 
decrees  of  a  large,  far-seeing  benevolence."  ^' 

§  46.     A    Nezu  Conception  of  Law  is    Needed.     Thus 
the  sociological  school,  the  Utilitarian  school,  and  the 

>"  "Justice,"  trans.  Castelot,  p.  52. 

"  SeeEhrhardt,  "La  Crise  Actuelle  de  la  Philosophie  du  Droit,"  p.  156. 
12  Ibid.,  p.  158. 

^3 Spencer,  "Social    Statics."  éd.  of    1851,  p.  323.     [Cf.  éd.  of  1892, 
p.  150.] 


70  RECENT   PHASES  [  Ch.  V 

historical  school  arrive  at  almost  identical  conclusions; 
they  all  eliminate  the  old  idea  of  the  law.^*  We  find 
ourselves,  then,  still  confronted  by  the  same  dilemma, 
obliged  to  choose  between  two  conceptions,  neither  one 
of  which  can  satisfy  us;  either  to  base  the  law  on  an 
a  priori  principle  which  reason  does  not  justify,  or  else 
to  consider  it  as  a  simple  expedient,  a  kind  of  succeda- 
neum  for  power  ;  a  kind  of  artifice  employed  by  society 
for  its  own  ends.  The  consequences  resulting  from  this 
state  of  mind  are  such  as  it  was  bound  to  produce.  They 
can  be  perceived,  unquestionably,  in  the  present  moral 
crisis,  so  often  pointed  out,  and  described  in  such  striking 
fashion  by  Bureau. ^^  Assuredly  this  crisis  has  many 
and  various  causes,  but  it  seems  beyond  question  that 
it  is  partly  brought  about  by  the  decline  of  idealism, 
by  the  fact  that  individuals  are  less  and  less  disposed 
to  self-sacrifice.^^  What  is  no  less  evident  is  that  the 
fate  of  law  is  bound  up  with  that  of  morals;  the  down- 
fall of  morals  involves  that  of  the  law.  Indeed,  the  law 
is  potent  not  merely  through  the  exercise  of  coercion; 
it  borrows  its  authority  from  the  conscience,  from  the 
feelings  of  those  who  elaborate  it  and  of  those  to  whom 
the  law  is  applied. 

§  47.  The  Danger  in  Deficient  Idealism.  If  the  legis- 
lator repudiates  all  idealism,  he  sees  in  the  law  nothing 
more  than  the  means  of  exacting  obedience  from  others, 
of  making  the  strength  of  the  social  organization  serve 

"  "In  nature  there  is  no  law,  there  are  only  facts."  Danten,  "Nature 
des  Choses,"  p.  154. 

"  "La  Crise  Morale  des  Temps  Nouveaux." 

16  "In  a  society  like  ours,  where  moral  relaxation  is  general,  that  we 
should  ask  creatures  of  flesh  and  blood  to  resist  temptations  to  which 
others  yield,  to  choose  a  life  that  is  often  narrow  and  difficult,  to  struggle 
against  the  calculations  of  self-interest  or  egoism,  to  combat  all  weak- 
nesses, all  pleasures,  to  endure  the  anguish  of  a  truly  profound  and 
active  moral  life,  is  not  this  to  demand  of  them  a  heroic  effort  for  which 
little,  bourgeois  virtue  is  far  from  sufficient,  for  which  a  veritable  heroism 
is  often  necessary?"     (P.  Bureau,  BSP,  April  1908,  pp.  144,  145.) 


§47]  THE   POSITIVIST  SCHOOL  71 

his  political  purposes.  In  a  country  where  the  legis- 
lative power  is  unlimited,  where  public  rights  are  not 
rights  guaranteed  by  the  constitution,  the  separation 
of  powers  is  only  a  fiction.  Everything  is  possible  for 
the  legislator,  or  at  least  appears  so  to  him;  the  law  is 
nothing  but  a  means  of  reducing  his  adversaries  to 
impotency.  If  the  result  is  not  secured  by  the  first 
attempt,  a  second  or  a  third  law  can  always  be  passed. 
If  the  interpretation  of  a  statute  already  enacted  leaves 
room  for  doubt,  and  the  question  is  submitted  to  the 
courts,  one  can,  by  a  law  denying  jurisdiction,  forbid  a 
decision,  and  by  an  interpretative  law  substitute  a  more 
favorable  interpretation  for  that  which  seemed  destined 
to  prevail.^''  This  is  a  method  of  turning  about  the 
principle  of  the  non-retroactivity  of  laws,  which  more- 
over is  not  binding  upon  the  legislator  and  can  be  openly 
violated.  In  fiscal  matters,  a  system  is  put  in  operation 
not  unlike  the  turning  of  a  screw;  the  laws  are  the  object 
of  continuous  modification;  taxes  at  first  moderate  are 
gradually  increased. 

The  same  causes  create  almost  the  same  state  of  mind 
in  the  citizen  to  whom  the  law  applies.  It  no  longer 
commands  his  respect  ;  it  no  longer  seems  to  him  to  have 
any  moral  value.  He  demands  laws  of  exemption, 
laws  of  privilege,  laws  of  subvention,  without  regard 
to  the  blow  thus  dealt  to  public  interest.  If  the  law 
ofi^ends  or  annoys  him,  he  employs  every  means  to  escape 
its  efi'ect:  ill  will,  simulation,  fraud,  and  if  necessary 
even    violence.^®     Reforms    become    almost    impossible, 

»'  Regarding  interpretative  laws,  and  especially  regarding  the  law  of 
April  13,  1908,  which  affected  the  termination  of  twenty  thousand  law- 
suits brought  against  the  administration  of  State  property,  one  may 
consult  the  remarkable  article  of  Barthélémy,  "De  l'Interprétation  des 
Lois  par  le  Législateur"  (RDP,  July,  August,  September,  1908,  and 
separate  issue). 

18  An  abundant  collection  of  examples  may  be  found  in  Maxime  Leroy' s 
book,  "La  Loi,"  in  which  he  attempts  to  show  that  everybody  in  France 


72  RECENT   PHASES  [Ch.V 

because  the  reformer  would  have  to  choose  between  an 
uncertain  appHcation  of  the  law  and  measures  truly 
Draconian.  The  system  terminates  simultaneously  in 
arbitrariness  and  in  impotency  of  the  lav/.  Without  a 
spirit  of  legality,  society  is  continually  flung  from  anarchy 
to  despotism. 

§  48.  The  Uses  of  Idealism.  Democracy  cannot  be 
a  reign  of  progress,  of  liberty,  of  justice,  unless  the  law 
is  respected  by  him  who  makes  it  and  by  him  for  whom 
it  is  made.  Now  this  respect  implies  a  common  faith, 
a  minimum  of  idealism.  On  going  to  the  bottom  of  the 
matter,  we  discover  that  life  demands  for  each  of  us  a 
certain  residuum  of  sentiment  which  is  not  derived  from 
reason,  but  which  reason  nevertheless  controls. 

In  order  to  act,  to  plan,  to  profit,  by  experience,  to 
make  our  way  towards  an  appointed  goal,  we  must  con- 
sider ourselves  free,  must  accept  liberty  as  a  postulate. 
To  have  reasons  for  acting,  for  being  interested  in  life, 
we  must  become  attached  to  something  beyond  and 
above  ourselves,  must  feel  supported  and  guided  by  cer- 
tain sentiments,  which  may  be  sympathy,  duty,  or  honor. 
Perhaps  it  will  be  said  that  these  are  religious  feelings.  ^^ 

is  working  for  the  downfall  of  the  authority  of  the  law.  Let  us  merely 
quote  after  him  the  text  of  a  manifesto  published  in  1907  by  the  feder- 
ation of  the  retail  merchants  of  France:  "The  federation  of  the  retail 
merchants  of  France  has  the  honor  to  inform  the  affiliated  syndicates 
and  its  members  that  in  consequence  of  its  vigorous  action,  the  Keeper 
of  the  Seals  gave  his  word,  at  the  session  of  March  28,  to  discontinue  the 
execution  of  the  judgments  rendered  under  the  law  concerning  the 
weekly  holiday,  and  to  suspend  the  suits  in  court." 

As  a  consequence  the  retail  merchants  have,  until  further  orders, 
the  right  to  refuse  to  pay  the  amount  of  the  fines,  damages,  and  costs 
pronounced  against  them,  which  over-zealous  agents  of  the  adminis- 
tration might  claim  from  them.  In  case  of  further  proceedings  which 
may  appear  unjustified,  they  are  urged  to  inform  the  secretary  without 
delay.      QR,  April  1,  1907;  Maxime  Leroy,  "La  Loi,"  p.  320.) 

^*  William  James  thus  characterizes  the  life  of  religion:  "It  consists 
of  the  belief  that  there  is  an  unseen  order,  and  that  our  supreme  good 
lies  in  harmoniously  adjusting  ourselves  thereto."  ("The  Varieties 
of  Religious  Experience,"  p.  63.) 


§48]  THE   POSITIVIST  SCHOOL  73 

It  is  an  assured  fact  that  a  good  many  persons,  subscrib- 
ing or  not  to  a  religious  confession  of  faith,  seek  to 
produce  in  their  lives  a  harmony  between  sentiment 
and  reason.  All  those  persons  who  aspire  towards  some- 
thing exalted  and  eternal  have,  in  a  certain  sense, 
religious  souls.  The  efficacy  of  socialism,  for  example, 
depends  upon  an  inherent  religious  character;  if  social- 
ism repudiates  all  idealism,  it  is  sure  to  be  betrayed 
constantly  by  its  leaders.  As  soon  as  these  leaders  have 
obtained  satisfaction  for  themselves,  they  ought  logically, 
if  egoism  is  everything,  to  detach  themselves  from  the 
cause  which  they  have  made  use  of,  without  incurring 
any  reproach. 

Thus,  in  order  to  sustain  ourselves,  to  have  strength 
to  act  and  maintain  life,  we  must  give  due  consideration 
to  reason  and  to  mysticism.  According  to  Loisy,  "Who- 
ever believes  absolutely  in  the  good,  in  the  true,  is 
a  mystic;  for  as  we  cannot  demonstrate  strictly  the 
objective  value  of  our  knowledge,  no  more  do  we  demon- 
strate the  value  of  the  moral  ideal,  without  which, 
however,  no  individual  life,  no  human  society,  may 
be  solidly  established."  2° 

^0 A.  Loisy,  "Quelques  Lettres  sur  les  Questions  Actuelles,"  p.  67. 


74  RECENT   PHASES  (  Ch.  VI 


CHAPTER  VI 

CAUSES  AND  CHARACTERISTICS  OF  A  RENAS- 
CENCE OF  LEGAL  IDEALISM 

A  PLEA  FOR  THE  RETURN  TO  INDIVIDUALISM  —  THE 
NEED  OF  IDEALISM  —WIDESPREAD  EVIDENCES  OF  IDEAL- 
ISM—THE PROBLEM  OF  THE  BASIS  OF  DUTY— BELIEF 
IN  AN  IDEAL  IS  IRRESISTIBLE  —  OUR  PROGRAM  OUT- 
LINED. 

§  49.  A  Plea  for  the  Return  to  Individualism.  When 
Beudant's  excellent  book  on  "Le  Droit  Individuel  et 
l'État"  appeared  in  1891,  juridical  idealism  had  fallen 
into  singular  discredit  in  France.  Beudant  revived 
traditional  ideas,  went  back  to  the  Declaration  of  the 
Rights  of  Man,  to  the  school  of  natural  law,  based  law 
upon  reason,  opposed  individual  right  to  the  State,  and 
even  exaggerated  that  opposition  by  seeing  in  every 
case  of  State  intervention  a  restriction  of  individual 
right. ^  Without  going  so  far  as  this  writer,  we  must 
acknowledge  that  what  he  denounced  was  a  real  peril; 
the  negation  of  the  idea  of  rights  was  sweeping  democ- 
racy along  in  the  direction  of  absolutism;  the  current 
was  counter  to  that  of  the  Revolution,  which  insisted 
above  all  things  on  liberating  the  individual  and  main- 
taining in  him  a  consciousness  of  his  own  dignity.  In  a 
melancholy  conclusion,  Beudant  passed  his  adversaries 

I  Often,  on  the  contrary,  this  intervention  is  intended  to  safeguard 
the  right  of  the  weakest  individuals.  When  the  State  restricts  or  controls 
the  authority  of  the  husband  and  father,  it  guarantees  the  rights  of  the 
wife  and  child;  when  it  limits  the  number  of  hours  of  labor,  it  safe- 
guards rather  than  compromises  the  liberty  of  the  workingman. 


§49]     THE    RENASCENCE   OF    IDEALISM         75 

in  review,  acknowledged  the  increasing  force  of  the 
attack,  the  feebleness  of  the  resistance.  Right  and  left, 
he  found  in  the  doctrines  which  he  combated  the  same 
contempt  of  rights,  the  same  intolerance,  and  the  same 
tendency  toward  State  omnipotence. 

§  50.  The  Need  of  Idealism.  The  events  which  have 
followed,  and  the  painful  crisis  through  which  we  have 
passed,  have  shown  the  dangers  that  lie  in  that  weakening 
of  the  idea  of  rights.  Many  good  citizens  have  felt  the 
necessity  of  an  effort  to  restore  the  spirit  of  equality,  to 
enlighten  public  opinion,  and  to  interest  it  in  the  defense 
of  rights.  They  have  realized  that  a  democracy  could 
not  dispense  with  ideals,  that  without  ideals  the  Republic 
was  but  a  precarious  régime,  at  the  mercy  of  a  coalition 
of  malcontents  and  destined  to  degenerate  into  a  dicta- 
torship. Disquieting  signs  have  revealed  a  change,  a 
diminution,  in  morality.  Morals,  which  have  rested 
for  a  long  time  on  religious  beliefs,  now  seek  another 
basis.  Just  when  the  law  comes  to  recognize  the  right 
of  association,  we  perceive,  too,  that  association  requires 
a  basis  in  generous  good  will;  it  must  have,  at  least 
partially,  an  ideal  and  disinterested  aim.  Even  political 
parties  have  a  certain  need  of  idealism.  Far  from  main- 
taining themselves,  they  tend  toward  self-destruction, 
if  they  become  mere  syndicates  of  interests  whose  object 
is  the  conquest  and  the  sharing  of  power.- 

»  "But  in  any  event,  a  great  party,  after  having  established  a  régime 
which  is  not  easily,  distinguishable  from  the  nation  itself,  has  not  the 
right  to  live  on  its  past.  It  has  not  the  right  to  live  without  ideals. 
It  must  have  ideals,  so  that  it  can  give  to  the  citizens  the  nourishment 
which  they  cannot  possibly  do  without.  To  these  good  and  valiant 
men  who  make  up  these  committees,  who  comprise  the  staff  of  the 
republican  army,  and  who  ask  nothing  better,  indeed,  than  to  spend 
their  energy  and  their  zeal  in  the  public  interest,  in  the  service  of  a  gen- 
erous and  noble  ideal,  to  these  nourishment  must  be  given  more  sub- 
stantial and  wholesome  and  better  suited  to  the  purposes  of  propaganda. 
Across  those  stagnating  and  putrescent  pools  which  are  forming  and 
spreading  throughout  the  land  it  would  be  well  to  send  a  strong  puri- 
fying breeze  which  should  dissipate  all  the  foul  odors  and  kill  the  morbific 
germs."     (Speech  of  M.  Briand  at  Périgueux,  PT  October  12,  1909. 


76  RECENT   PHASES  [  Ch.  VI 

§51.  Widespread  Evidences  of  Idealism.  At  the  same 
time  a  revival  in  new  forms  of  religious  feeling,  as  dis- 
tinct from  dogmatic  faith,  has  taken  place  in  our  country. 
"If  you  are  a  believer,"  says  Alfred  Croiset  in  his  preface 
to  Paul  Bureau's  book,  "you  will  readily  recognize  this 
religious  spirit  in  forms  which  in  general  conceal  it  from 
the  hosts  of  the  faithful  in  all  the  positive  religions. 
You  will  discover  it  in  all  these  important  doctrines 
which  to-day  inspire  so  many  unbelievers;  in  socialism, 
in  Solidarism,  even  in  laicism.^  Wherever  you  find  an 
ideal,  a  faith,  a  passionate  devotion  to  that  ideal,  you  will 
perceive  germs  of  religious  spirit.  On  the  other  hand, 
wherever  you  find  a  narrow  practical  Positivism  hiding 
behind  beliefs  which  are  atrophied  or  dead,  there  you  will 
have  reason  to  denounce,  and  with  good  reason,  an  uncon 
scious  paganism."  *  In  all  the  societies  founded  to  bring 
together  those  willing  spirits  who  are  pursuing  a  dis- 
interested end,  who  are  active  in  behalf  of  truth,  moral 
uplift,  defense  of  the  law,  charity,  or  education,  we  feel  a 
certain  current  of  idealism.  One  of  the  best  informed  men 
in  France  on  religious  matters,  Paul  Sabatier,  has  written 
that  in  order  to  study  the  religious  movement  one  should 
not  only  look  for  it  in  the  organized  churches,  but  must 
go  into  the  people's  universities,  into  the  working- 
men's    syndicates    and    the    cooperative    associations.^ 

3  [See  footnote  5  in  section  on  "Pragmatism,"  p. 102  post. —  Ed.] 

4  Preface  to  "La  Crise  Morale  des  Temps  Nouveaux,"  p.  6. 

'  Proofs  of  this  are  not  far  to  seek.  We  will  cite  one  instance  at  ran- 
dom. ED  January  24,  1909  reports  a  meeting  of  protest  against  the 
dismissal  of  a  certain  number  of  ^workingmen  following  acts  of  syndical 
propagandism  in  the  region  of  Epinal,  and  closes  with  this  reflection: 
"On  leaving  this  meeting,  where  we  conversed  at  length  with  several 
of  the  dismissed  workingmen,  we  could  not  help  admiring  those  men 
who  accepted  their  trials  with  courage,  and  who  told  us  in  a  simple,  un- 
emotional manner  of  their  firm  determination  to  struggle  on  despite  all 
discouragement,  and  to  continue  at  any  cost  the  work  they  had  begun. 
And  we  were  set  to  thinking  that,  since  social  conflicts  seem  to-day  to 
be  growing  more  frequent  and  patronal  oppression  more  pronounced, 
it  would   be  indispensable  that   the  hearts  of  all   militants  should  be 


§51]      THE  RENASCENCE  OF  IDEALISM  77 

The  progress  of  religious  philosophy  has  so  broadened 
our  conception  of  religious  feeling  that  it  no  longer  holds 
as  essential  the  existence  of  definitely  determined  and 
formulated  beliefs,  like  the  dogmas  of  a  church.  Faith, 
according  to  Boutroux,  is  born  "of  the  feeling  of  distress 
which  invades  the  heart  of  man,  when  he  considers  that 
contrast  of  greatness  and  wretchedness  which  charac- 
terizes his  nature."  ^  For  many  a  man,  belief  in  some- 
thing superior  to  himself  is  a  condition  necessary  to 
action,  and  the  only  means  he  has  of  making  life  intel- 
ligible and  tolerable. 

These  forms  of  belief  are  essentially  variable;  one 
might  find  among  them  a  complete  graduated  series. 
The  first  group  would  include  all  those  who  profess  a 
positive  religion.  In  most  religions  one  encounters  faith 
in  a  personal  God  who  has  revealed  himself  to  man,  and 
who  by  special  intervention  acts  in  providential  and  at 
times  in  miraculous  ways.  The  churches  are  so  many 
associations,  differing  among  themselves  as  to  dogmas 
and  the  organization  of  external  authority,  and  leaving 
the  believer  a  greater  or  less  freedom  in  his  thinking. 
Besides  those  who  belong  to  the  churches  there  are  all 
those  whom  one  may  call  religions  freethinkers.  Among 
these  some  believe  in  God  and  in  a  future  life,  being 
unwilling  to  admit  that  death  puts  an  end  to  our  affec- 
tions, or  that  goodness  goes  unrewarded;  others  put 
aside  the  problem  of  the  existence  of  God,  but  believe 
in  justice,  in  duty,  in  the  fatherland,  in  humanity.  We 
should  have  to  count  also  a  good  many  who  are  idealists 
without  knowing  it.  Let  a  moral  or  social  crisis  arise, 
one  of  those  crucial  experiences  of  life  which  reveals  men 

aflame  with  that  ideaHsm  and  courage  which  enlarge  men's  natures,  and 
enable  them,  in  spite  of  sufferings,  to  work  toward  the  advent  of  a  new 
era." 

^Boutroux,  "La  Philosophie  en  France  depuis  1887"  (RMM  1908 
p.  707). 


78  RECENT   PHASES  [  Ch.  VI 

to  themselves,  and  that  idealism  appears,  inspiring 
courage,  devotion,  and  nobility  of  character.  Many  a 
man  thinks  himself  indifferent  or  sceptical  who,  when 
the  right  moment  arrives,  plays  the  rôle  of  an  idealist 
ready  to  sacrifice  his  interests,  his  repose,  and  some- 
times his  life,  in  the  defense  of  a  principle.  Even 
though  we  do  not  behold  idealism  everywhere,  nor  in- 
dulge in  any  self-deception  with  regard  to  it,  we  can  yet 
maintain  as  a  fact  that  pure  intellectualism  or  perfect 
egoism  is  seldom  met  with ,  for  the  reason  that  these  present 
conditions  under  which  life  is  almost  an  impossibility. 

§  52.  The  Problem  of  the  Basis  of  Duty.  We  often 
see  idealism  mingled  with  Utilitarianism,  we  may  find 
it  also  in  the  philosophical  doctrines  which  are  apparently 
the  furthest  removed  from  a  mystical  tendency.  Let 
us  take,  for  example,  the  opinions  presented  when  the 
French  Philosophical  Society  held  its  discussion  of  the 
present  moral  crisis.'^  The  proposition  is  stated  by 
Bureau:  Contemporaneous  society  is  passing  through 
a  moral  crisis,  one  of  the  great  causes  of  which  is  that  the 
idea,  the  basis,  the  justification  of  duty  are  profoundly 
shaken  within  us.  How  shall  we  give  to  our  democracies 
the  moral  doctrine  which  is  necessary  to  their  existence? 
Few  of  our  opponents  deny  that  there  is  such  a  crisis, 
and  most  of  them  also  agree  in  recognizing  the  influence 
of  the  condition  which  Bureau  sets  forth;  they  debate 
only  the  range  through  which  that  condition  exerts  its 
influence.  The  main  point  on  which  the  discussion 
bears  is  in  the  question  whether  a  basis  for  morals  must 
really  be  provided.  Rauh,  Lalande,  and  Belot  look 
upon  such  an  attempt  as  a  vain,  misleading,  and  even 
perilous  task. 

Philosophical    reflection    has    been    concentrated    for 
centuries  around  this  problem,  and  it  has  brought  forth 

'  BSP  April  1908. 


§52]     THE   RENASCENCE   OF   IDEALISM         79 

nothing  satisfying.^  "From  ihe  proposition  'this  is,'  it 
would  be  the  question  of  deducing  a  'thou  shalt.'  ^  Such 
a  contention  appears  to  be  more  and  more  impossible 
and  vain  ;  it  contradicts  all  the  rules  of  logic.  One  can 
never  bring  forth  a  precept,  a  commandment,  from  a 
fact,  a  datum,  a  thing  existing. i"  It  is  dangerous  to 
let  the  moral  code  stand  or  fall  with  any  given  faith; 
for  when  this  faith  is  shaken,  when  people  cease  to  believe 
in  the  religion  which  upholds  their  particular  code  of 
morals,  in  the  God  who  ordains  and  sanctions  it,  they 
are  released  at  the  same  time  from  the  code  of  morals 
itself."  ^^  And  yet  we  do  wish  to  try  to  preserve  and 
to  maintain  this  moral  system.  Lalande  admits  that 
a  man  who  professes  not  to  believe  in  a  moral  code  is 
impregnable.  But  such  a  case  is  very  rare,  almost 
pathological.  "Indeed,  by  bringing  particular  cases 
to  the  notice  of  such  an  individual  (for  example,  by 
citing  a  judge  who  wittingly  condemns  an  innocent  per- 
son in  order  to  serve  a  personal  interest) ,  you  will  be  sure 
to  rouse  him  to  energetic  affirmation  or  disapprobation. 
Then  from  that  point  you  can  go  on,  and  little  by  little, 
reconstruct  for  this  man  a  complete  system  of  morals."  ^^ 
Belot  believes  in  the  efficacy  of  an  educative  solution: 
"You  must  interest  a  man  in  the  things  that  you  ask 
him  to  accept  and  accomplish."  ^^  "Why  should  we 
fear  lest  man,  preeminently  a  social  being,  should  not  be 
interested  in  social  concerns,  and  even  devote  himself 
to  them,  should  not  live  morally,  do  his  duty,  expend 
his  energy  round  about  him  with  joy,  or  even  enthusiasm. 

«Belot,  BSP  loc.  cit. 

«[D'une    proposition   ceci   existe,    il   s'agirait   d'extraire    un:    il  faut 
faire.] 

loLalande,  BSP  p.  133. 
i^Belol.  ibid.,  p.  137. 
1'^ Lalande,  ibid.,  p.  135. 
li Belot,  ibid.,  p.  139. 


80  RECENT   PHASES  [  Ch.  VI 

I  truly  cannot  grasp  so  rigidly  circumscribed  an  idea 
of  human  nature.  One  sees,  on  scrutinizing  it,  that  the 
whole  question  is  one  merely  of  the  education  of  indi- 
viduals." ^^  We  may  doubt  the  value  of  this  empirical 
process,  if  we  share  the  view  of  Parodi  ^^  that  "in  order 
to  win  men  over  to  morality,  we  must  furnish  them  with 
reasons;  we  may  well  be  amazed  if  those  same  people 
who  in  philosophy  claim  the  right  to  freedom  of  research, 
should  tend  in  practice  to  rely  upon  instinct."  But 
what  is  significant  is  that  common  attachment  to  moral- 
ity, that  feeling  that  morality  must  be  preserved,  even 
though  we  decline  to  justify  it.  That  is  the  very  essence 
of  faith.  Rauh  recognizes  this.  "Faith  in  an  ideal, 
in  an  obligation,  sometimes  affects  man  as  irresistibly 
as  does  belief  in  natural  laws.  No  more  in  the  case  of 
moral  laws  than  of  natural  laws  is  man  able  to  grasp 
any  substantial  transitive  bond  between  one  fact  and 
another,  that  intimate  mystery  of  creation. 

§  53.  Belief  in  an  Ideal  is  Irresistible.  "So,  in  the 
one  case  as  in  the  other,  man  has  no  proof  of  what  is  true 
except  the  very  irresistibility  of  his  belief.  This  is  what 
Kant,  following  Hume,  demonstrated  so  clearly.  Why 
indeed  should  man  accept  irresistibility  as  a  criterion 
in  the  one  case  and  not  in  the  other?  He  must  accept 
as  they  are  the  various  forms  of  his  certitude,  must 
believe  that  when  he  acts  he  has  something  to  do,  that 
when  he  contemplates  nature  there  is  a  certain  order 
in  the  things  done,  or  more  generally  speaking,  in  the 
things  themselves.  His  function  is  as  much  to  believe 
as  to  prove."  ^^  We  find  the  same  idea  stated  at  the 
close  of  Boutroux's  communication  to  the  philosophical 
congress  at  Heidelberg.     "Finally,  although  insistently 

"  Ibid.,  p.  139. 
"  Ibid.,  p.  151. 
i^Rauh,  "L'Expérience  Morale,"  p.  3. 


§53]     THE   RENASCENCE  OF   IDEALISM         81 

preoccupied  with  their  respect  for  science  and  with  their 
enrollment  within  its  ranks,  our  philosophers  have  not 
ceased  to  devote  themselves  to  the  study  and  the  defense 
of  principles  which  can  be  only  arbitrarily  linked  with 
scientific  truths:  the  ideas  of  right  and  duty,  of  human 
justice,  dignity,  and  brotherhood.  Consecrated  to 
science,  they  remain  apostles  of  the  ideal.  They  do  not 
consent  to  a  separation  of  the  knowledge  of  what  is, 
from  the  pursuit  of  what  ought  to  be."  " 

§  54.  Our  Program  Outlined.  We  must  now  make  a 
study  of  the  principal  doctrines  which  seem  to  us  destined 
to  satisfy  this  need  of  idealism:  Solidarism,  Pragmatism, 
Natural  Law  with  Variable  Content,  Free  Scientific 
Research,  and  Duguit's  theory  of  objective  law. 

" Boulroux,  "La  Philosophie  en  France  depuis  1887  (RMM  November 
1908.  p.  714). 


82  RECENT   PHASES  [  Ch.  VII 

CHAPTER  VII 
SOLIDARISM 

SOLIDARISM  DEFINED  —SOLIDARITY  EXEMPLIFIED  IN 
CHRISTIAN  DOCTRINE  —  THE  RELATION  OF  SOLIDAR- 
ISM TO  SCIENCE  — EXAMPLES  FOUND  IN  THE  FIELD  OF 
ECONOMICS  — SOLIDARISM  AND  ETHICS  — A  WIDESPREAD 
DEMAND  FORA  NEW  TERM —SOLIDARITY  ADVOCATED 
AS  A  LINK  BETWEEN  SCIENCE  AND  ETHICS— THE  POSI- 
TION ASSAILED  —  CONCESSIONS  BY  THE  SOLIDARISTS  — 
SOLIDARISM  IS  OF  REAL,  THOUGH  LIMITED,  ETHICAL 
VALUE  — A  JURIDICAL  BASIS  CLAIMED  — THE  DOCTRINE 
OF  SOCIAL  QUASI-CONTRACT  —  GENERAL  REVIEW  OF 
SOLIDARISM— SOLIDARISM  AND  SOCIALISM— THE  PRESENT 
STATUS  OF  SOLIDARISM. 

§  55.  Solidarism  Defined.  Solidarism  is  a  doctrine 
in  which  the  idea  of  solidarity  is  taken  as  the  principle 
of  moral  action.  The  idea  of  solidarity,  which  expresses 
union  and  interdependence  among  men,  is  a  very  old  one. 

§  56.  Solidarity  Exemplified  in  Christian  Doctrine. 
It  is  a  Christian  idea.  According  to  St.  Paul,  we  are 
all  members  of  one  body.  "So  then  as  through  one 
trespass  the  judgment  came  unto  all  men  to  condemna- 
tion, even  so  through  one  act  of  righteousness  the  free 
gift  came  unto  all  men  to  justification  of  life.  .  .  .  For 
as  in  Adam  all  die,  so  also  in  Christ  shall  all  be  made 
alive."  ^  The  dogma  of  original  sin  proceeds  from  the 
imputability  of  punishments;  the  doctrine  of  redemption 
proceeds  from   the  imputability  of  deserts.     Similarly 

I  Romans  v:  18,  1st  Corinthians  xv:  22, 


§56]  SOLIDARISM  83 

also,  in  Catholicism,  the  Communion  of  Saints  means 
that  bond  which  unites  all  the  members  of  the  suffering 
church,  the  church  triumphant,  and  the  church  militant. 
All  those  who  have  been  baptized  and  are  called  to 
righteousness,  even  though  they  have  sinned,  can  save 
themselves  by  their  prayers,  their  good  works,  and  their 
indulgences. 

§  57.  The  Relation  of  Solidarism  to  Science.  Soli- 
darity is  an  idea  borrowed  from  science,  it  is  the  idea 
that  serves  to  characterize  life.  "The  living  being,  the 
individual,  can  scarcely  be  defined  except  as  the  soli- 
darity of  function  which  unites  distinct  parts;  and  death 
is  no  more  than  the  rupture  of  this  solidarity  of  the 
various  elements  which  constitute  the  individual,  ele- 
ments which,  henceforth  dissociated,  are  to  enter  into 
new  combinations  and  into  new  beings."  ^  It  is  because 
there  is  no  solidarity,  no  interdependence  of  parts,  that 
there  is  no  life  in  a  mineral  ;  the  parts  are  held  together 
only  by  molecular  attraction.  The  phenomena  of 
crystallization  may  be  considered  as  a  primitive,  as  yet 
obscure  form  of  life.  The  same  idea  of  solidarity  com- 
pletes rather  than  contradicts  the  doctrine  of  the  struggle 
for  existence;  it  is  by  association,  by  mutual  assistance, 
that  "the  victory  is  often  won."  ^  In  animal  societies 
mutualism  and  a  spirit  of  cooperation  contribute  to 
the  progress  of  evolution;  and  the  most  prosperous 
species  are  those  whose  instincts  of  sociability  are  the 
most  highly  developed.  Pasteur's  discoveries  showed 
that  there  is  solidarity  among  the  men  of  the  same  coun- 
try from  the  point  of  view  of  hygiene;  many  diseases 
are  social  ills,  and  the  rich  who  remain  indifferent  to  the 
wretchedness  of  the  poor  put  their  own  lives  in  jeopardy. 

i  Charles  Gide,  "L'Idée  de  Solidarité,"  p.  2.  Compare  Ch.  Gide  and  C. 
Rist,  "Histoire  des  Doctrines  Économiques":  "Les  Solidaristes,"  pp. 
671-699. 

^Gide,  "L'Idée  de  Solidarité,"  loc.  cit. 


§4  RECENT   PHASES  [  Ch.  VII 

§  58.  Examples  Found  in  the  Field  of  Economies. 
Solidarity  is  an  economic  idea.  The  economists  have 
made  us  familiar  with  the  service  which  men  render 
each  other  by  division  of  labor,  by  exchange,  and  by 
competition  itself.  By  division  of  labor,  each  man  lives 
by  the  labor  of  others,  and  in  turn  labors  for  others.^ 
Through  exchange,  men  come  together  and  perform  a 
mutual  service,  even  though  they  have  opposing  inter- 
ests; the  same  contract  secures  to  each  of  its  parties 
not  only  the  stipulated  benefit,  but  a  gain  of  utility. 
Finally,  competition,  even  though  it  partakes  of  the 
nature  of  strife,  has  nevertheless  a  moral  value;  it  is 
that  which  stirs  the  zeal  of  producers  and  middlemen, 
and  makes  them  eager  to  anticipate  and  serve  the  desires 
of  their  customers. 

§  59.  Solidarism  and  Ethics.  Several  attempts  have 
been  made  to  carry  this  idea  of  solidarity  into  the  domain 
of  ethics.  Among  the  precursors  of  the  present  move- 
ment, special  mention  ^  has  been  made  of  Fouillée, 
Henry  Marion,  Charles  Gide,  and  Durkheim.  Gide, 
in  a  lecture  on  the  idea  of  solidarity,  published  in  1893 
in  the  Revue  Générale  de  Sociologie,  had  pointed  out  how 
fruitful  this  idea  might  be,  accepted  as  a  moral  law  and 
an  economic  program.  This  idea,  conferring  on  men 
the  feeling  of  mutual  dependence,  bound  them  to  aid 
and  relieve  one  another.  This  writer  showed  that 
progress  consists  in  passing  from  the  solidarity  that  is 
fatalistic  and  forced  to  the  solidarity  that  is  accepted 
and  voluntary.  For  example,  to  hereditary  succession," 
the  natural,  fatalist  form  of  solidarity,  he  set  in  opposition 
cooperation,    the    perfected    form    of    free    association, 

*Gide,  "L'Idée  de  Solidarité,"  p.  3.  Cf.  Gide  and  Rist,  "Histoire  des 
Doctrines,"  p.  675. 

^Bougie,  "Le  Solidarisme,"  p.  3. 

«["L'hérédité,"  in  a  sense  embracing  the  transmission  of  all  civil 
rights.  —  Ed.] 


§59]  SOLIDARISM  85 

whose  motto  is,  Each  for  all  and  all  for  each.  Durkheim, 
in  his  book  on  "La  Division  du  Travail  dans  le  Monde 
Social,"  likewise  distinguished  two  forms  of  solidarity, 
the  mechanical,  in  which  individualities  are  submerged 
in  larger  units  like  the  molecules  which  form  a  crystal, 
and  the  organic,  in  which  independence  of  function  in  the 
various  parts  of  the  social  organism,  far  from  annihilating 
the  individual,  develops  it  and  contributes  to  its  progress, 
Henry  Michel,  in  his  book  on  "L'Idée  de  l'Etat,"  pre- 
sented another  aspect  of  the  same  idea,  demonstrating, 
in  the  wake  of  Renouvier,  that  true  individualism  does 
not  isolate  the  individual  nor  shut  him  within  himself, 
but  conceives  of  him  as  destined  to  live  and  develop  as 
one  of  a  group,  and  to  become  a  copartner  "^  of  other 
men. 

§  60.  A  Widespread  Demand  for  a  Neiu  Term.  Soli- 
darity was  given  a  new  impulse  when  in  1897  Léon 
Bourgeois,  a  politician  possessing  an  enlightened  and 
sympathetic  interest  in  the  labors  of  men  of  thought, 
adopted  and  brought  forward  the  idea  in  a  little  book 
entitled  "La  Solidarité."  According  to  Bougie,  this  work 
had  the  character  of  a  manifesto.  Solidarity  seemed 
destined  to  become  the  moral  viaticum  of  a  great  party, 
which  was  to  draw  from  that  idea  a  new  store  of  idealism, 
and  the  inspiration  for  a  whole  new  program  of  practical 
activities.  The  most  important  work  of  the  actual 
régime,  the  organization  of  a  laïc  system  of  education 
in  the  elementary  schools,  remained  compromised  unless 
this  instruction  should  prove  capable  of  providing  a  solid 
moral  education.  Laicism  had  need  of  a  doctrine;  it 
was  conceivable  that  Solidarism  might  furnish  it.  The 
idea  of  solidarity,  borrowed  from  science,  would  perhaps 
enable  men  to  realize  the  long-deferred  hope  of  finding 
a  scientific  basis  for  ethics,  of  erecting  a  passageway,  "an 

'  [Personne  solidaire.] 


86  RECENT   PHASES  [  Ch.  VII 

arch,"  between  conscience  and  science.  The  word 
"solidarity"  itself,  with  its  suggestion  of  vagueness, 
would  form  a  felicitous  substitute  for  other  words  too 
hackneyed  or  too  restricted  in  meaning  to  be  effective. 
"  'Justice,'  distinguished  from  charity  by  long  usage, 
and  drained,  so  to  speak,  of  all  sensibility,  gives  an 
effect  of  something  hard  and  unfeeling.  'Charity,'  in  the 
current  sense  of  the  word  (which  is  not  the  original  and 
truly  Christian  sense),  expresses  a  kind  of  sentimental 
and  gratuitous  condescension  as  of  a  superior  to  an 
inferior.  'Fraternity'  itself,  which  was  so  dear  to  the 
sentimental  democracy  of  1848,  has  the  drawback  of 
being  nothing  more  than  a  sentiment,  and  our  modern 
generations,  eager  for  positive,  objective  knowledge, 
were  in  need  of  a  word  which  should  express  the  scien- 
tific character  of  the  moral  law.  The  word  'solidarity,' 
borrowed  from  biology,  admirably  fulfilled  this  obscure 
but  profound  necessity."  ^  From  this  idea  of  solidarity 
one  might  finally  evolve  a  whole  program  of  social 
reforms,  point  the  way  for  a  party  which  was  prepared 
to  repudiate  the  old  economic  liberalism,  and  attempt 
to  intervene  for  the  alleviation  of  suffering  or  undeserved 
misery  without  provoking  strife  between  classes  in  the 
effort  to  win  economic  peace  through  revolution.  Thus 
Solidarism  could  become  a  great  political  theory,  enlisting 
the  support  of  many  good  wills  and  linking  with  the  idea 
of  justice  every  sort  of  aspiration  and  a  complete  pro- 
gram of  reforms.  Inspired  by  M.  Bourgeois,  the  move- 
ment spread  rapidly.  Series  of  lectures  and  conferences 
were  organized  to  set  forth  and  to  elucidate  all  the 
probable  results  of  the  doctrine  and  to  extend  them  into 
new  spheres,  especially  into  education. 

Let  us  try  to  see  what  is  the  foundation  and  what 
the  practical  bearing  of  this  doctrine,  so  that  we  may 

^A.  Croiset,  "Essai  d'une  Philosophie  de  la  Solidarité,"  preface,  p.  x. 


§601  SOLIDARISM  87 

have  a  sound  basis  for  judgment.  The  Solidarists  have 
attempted  to  establish  their  doctrine  on  a  foundation 
at  once  scientific  and  juridical. 

§  61.  Solidarity  Advocated  as  a  Link  between  Science 
and  Ethics.  "In  order  to  put  ethics  on  a  truly  scien- 
tific basis,"  says  Boutroux,^  "there  must  be  an  existing 
fact  which  is  capable  at  the  same  time  of  being  observed 
objectively  and  of  furnishing  a  norm  of  human  conduct. 
Now  solidarity  seems  precisely  to  unite  these  two  condi- 
tions." And  moreover  it  is  a  fact.  Science  teaches  us 
that  life  is  an  association  of  organs,  all  of  which  assist  one 
another  and  are  mutually  dependent.  The  same  interde- 
pendence exists  among  the  members  of  a  society.  In 
order  to  be  bom  into  the  world,  to  grow  up,  to  become 
educated,  to  learn  and  to  practise  his  profession,  to  pro- 
vide for  his  needs,  to  preserve  his  health,  to  think,  to 
develop  his  mind,  a  man  needs  the  help  of  his  fellow  men. 
He  is  under  obligation  not  only  to  his  contemporaries  but 
to  all  the  generations  which  have  preceded  his  own,  which 
have  tilled  the  soil,  founded  and  built  cities,  accumu- 
lated enormous  reserves  of  material  wealth,  of  scientific 
discoveries  and  industrial  inventions,  established  a  com- 
plete intellectual  and  artistic  patrimony,  developed  and 
transmitted  civilization.  In  such  ways  we  feel  indebted 
to  others.  Some  of  the  Solidarists  have  held  that  such 
indebtedness  gave  them  a  solid  basis  of  known  truth 
on  which  to  establish  their  doctrine.  "Upon  this 
truth,"  writes  Payot,^''  "ethics  is  founded  as  upon  a  bed 
of  rock."  But  manifold  objections  have  arisen.  We 
have  had  to  recognize  —  and  this  is  what  Léon  Bour- 
geois in  particular  has  done  —  that  the  doctrine  of 
Solidarism  was  not  formed  by  a  simple  grafting  of  ethics 
upon  science. 

»RMM  1908,  p.  695. 
""Cours  de  Morale,"  p.  31. 


88  RECENT   PHASES  [Ch.VII 

§  62.  The  Position  Assailed.  Science  and  ethics  are 
necessarily  separate;  we  cannot  pass  from  one  to  the 
other.  Science  gives  us  the  explanation  of  phenomena, 
teaches  us  the  why  and  wherefore  of  tilings,  but  does  not 
provide  us  with  a  rule  of  action.  We  are  not  justified 
in  going  from  "the  enunciative  to  the  normative."  ^^ 
There  is  no  moral  significance  in  the  fact  that  solidarity 
exists  in  nature.  Nature  is  indifferent;  it  knows  neither 
good  nor  evil.  If  solidarity  were  a  natural  law  which 
we  were  bound  to  obey,  we  should  have  to  accept  it  as 
nature  established  it,  without  considering  the  justice 
or  injustice  of  its  consequences.  Then  it  must  follow 
that  all  the  consequences  of  natural  solidarity  are  equally 
salutary  and  good.  Nature  shows  us  not  only  beings 
which  are  helpful  to  each  other;  it  shows  us  some  living 
at  the  expense  of  others.  In  the  social  struggle  there 
are  the  victors,  the  vanquished,  and  the  parasites.  The 
child  who  is  handicapped  by  the  ill  effects  of  the  disease 
or  the  vices  of  his  parents  is  a  victim  of  solidarity.  If 
natural  solidarity  is  to  become  a  moral  rule,  the  con- 
clusion which  shrewd  people  will  draw  from  it  is  that  they 
must  contrive  to  make  use  of  the  services  of  others,  and 
to  live  at  their  expense,  in  any  event  to  keep  the  upper 
hand. 

As  Paul  Bureau  *^  has  said,  the  ethics  of  solidarity 
teach  selfishness  as  well  as  unselfishness.  How  many 
examples  might  be  cited  in  support  of  this  observation! 
The  tax-payer  who  makes  an  honest  declaration  says 
to  himself:  I  shall  be  the  victim  of  my  own  honesty; 
every  man  practises  deception  in  order  to  evade  a  part 
of  the  tax,  whoever  does  not  do  so  is  in  reality  overtaxed 
and  pays  for  others  beside  himself.  The  workingman 
who  is  unwilling  to  belong  to  a  union  safeguards  his  own 

i^Lalande,  BSP  April  1908,  p.  133. 

"  "Crise  Morale  des  Temps  Nouveaux,"  p.  324. 


§62]  SOLIDARISM  89 

liberty,  saves  time  and  money,  and  conciliates  his  em- 
ployer; nevertheless  he  will  benefit  by  the  action  of  the 
others  if  the  activity  of  the  union,  or  a  strike,  enables 
him  to  receive  an  increase  of  wages  or  a  decrease  in  the 
number  of  hours'  work  in  a  day.  The  manufacturer 
who  establishes  a  pension  fund  or  who  lightens  the  labor 
of  women  and  children  assumes  voluntarily  an  obligation 
which  the  law  has  not  imposed  on  him,  but  he  also  plays 
into  the  hands  of  his  competitors  and  thereby  weighs 
himself  down  with  an  additional  burden;  made  wise 
by  his  experience,  he  will  find  his  zeal  diminishing,  will 
try  a  change  of  method,  doing  as  others  do,  and  thus 
yield  to  the  law  of  solidarity.  The  professional  man  who 
buys  a  practice,  resolving  to  abstain  from  certain  abuses 
which  are  the  "bonus  dolus"  of  the  profession,  by  that 
very  means  renders  conditions  unfavorable  to  himself 
and  diminishes  the  products  and  the  value  of  his  practice. 
The  functionary  who  wishes  to  pursue  his  career  without 
solicitation  or  intrigue  jeopardizes  his  own  future  and 
facilitates  the  progress  of  his  colleagues  who  are  not 
impeded  by  such  scruples. 

§63.  Concessions  by  the  Solidarists.  In  the  objections 
urged  against  their  doctrine  on  these  two  points,  the 
Solidarists  have  had  to  admit  that  there  is  a  large  share 
of  truth. 

The  transition  from  natural  law  to  obligation  takes  for 
granted  an  act  of  volition,  and  this  act  implies  a  faith 
in  justice.  "Wlien  we  ask  ourselves,"  said  Léon  Bour- 
geois, ^^  "what  conditions  human  society  must  satisfy 
in  order  to  maintain  itself  in  a  state  of  equilibrium,  we 
are  led  to  believe  that  the  one  sole  prerequisite  is  justice." 
And  further,  in  reply  to  Malapert:  "We  testify  to  this 
fact;  that  the  need  of  justice  exists  in  every  conscience 

13  "Essai  d'une  Philosophie  de  la  Solidarité,"  first  lecture  of  Léon 
Bourgeois,  on  the  idea  of  solidarity,  p.  8. 


90  RECENT   PHASES  [  Ch.  VII 

and  rules  there  imperiously.  It  matters  little  whether 
the  notion  of  justice  be  an  innate  idea,  a  conception  of 
some  ideal  existing  outside  the  mind,  or  whether  it  be  a 
relatively  recent  acquisition,  or  the  result  of  a  secular 
evolution.  We  take  justice  for  granted,  and  it  is  our 
point  of  departure."  '^  Exactly;  but  that  is  a  very 
significant  confession.  It  is  an  admission  that  it  is 
futile  to  pretend  to  found  ethics  on  science,  and  that  the 
postulate  of  ethics  is  belief,  is  faith,  whether  rational 
or  otherwise. 

But  it  is  not  enough  to  set  up  the  idea  of  solidarity 
as  an  end,  to  make  it  an  ethical  principle;  we  must  still 
choose  among  the  forms  of  solidarity,  must  retain  some 
and  reject  others.  This  choice  brings  us  back  again  to 
the  idea  of  justice,  which  must  serve  as  our  criterion. 
"That  solidarity  which  we  desire  to  establish  is  such  as 
will  conform  to  the  idea  of  what  is  just,  and  will  make 
the  accomplishment  of  justice  possible."  ^^  We  are  there- 
fore warranted  in  saying  that  the  Solidarists  are  also 
idealists.  "We  discover  in  their  souls  all  those  intense 
feelings  with  which  philosophical  adherents  of  natural 
law  have  made  us  familiar  ;  these  are  the  feelings  which 
vibrate  upon  contact  with  fact;  these  the  reactions 
which  decree  the  reforms  which  Solidarism  aspires  to 
introduce.^^ 

§  64.  Solidarism  is  of  Real,  though  Limited,  Ethical 
Value.  But  having  made  these  reservations,  we  must 
concede  that  even  if  solidarity  does  not  furnish  ethics 
with  the  fixed  principle,  the  firm  foundation,  that  its 
followers  may  have  wished  to  give  it,  it  contributes  at 
least  a  very  important  complementary  element.  By 
revealing  to  us  what  we  owe  to  our  fellows  and  how  we 

»  Ibid.,  p.  27. 

"  "Essai  d'une  Philosophie  de  SoHdarité,"  lecture  oi  Boiitroux,  on  the 
rôle  of  the  idea  of  solidarity,  p.  278. 
i^Bougîê,  "Le  Solidarisme,"  p.  48. 


§64]  SOLIDARISM  91 

are  dependent  on  them,  it  enables  us  better  to  under- 
stand our  duty  and  helps  us  to  accomplish  it.^^  Solid- 
arism  broadens  our  conception  of  individual  right. 
Instead  of  shutting  the  individual  within  his  ego,  instead 
of  isolating  him,  of  putting  him  constantly  on  the  de- 
fensive toward  his  fellows  and  toward  the  State,  it  leads 
him  to  see  that  he  cannot  attain  complete  development 
except  through  society,  that  society  has  need  of  him, 
and  is  essential  to  his  own  well-being. 

§  65.  A  Juridical  Basis  Claimed.  We  have  seen  that 
the  Solidarists  founded  their  faith  on  law  also,  and 
sought  to  establish  their  doctrine  on  a  juridical  basis. 
Starting  with  the  idea  that  from  birth  man  is  charged 
with  a  social  debt,  they  tell  us  that  in  his  relations  to 
others  he  is  in  the  situation  of  a  person  who  has  received 
something  which  he  does  not  deserve,  or  who  has  profited 
by  a  merely  lucky  turn  of  affairs.  He  is  bound  by  virtue  of 
a  quasi-contract,  which  means  above  all  that  he  is  bound 
without  his  act,  and  without  having  consented  to  his  obli- 
gation. But  how  is  the  extent  of  this  obligation  to  be 
determined?  In  whose  interest  will  it  be  discharged? 
I  n  principle  it  rests  on  all  men  ;  all  are  in  varying  degrees 
debtors  to  society.  This  obligation  binds  us  to  the 
generations  which  have  preceded  us  and  for  which  we 
can  do  nothing;  but  through  a  sense  of  justice  and  equity, 
we  consider  ourselves  under  obligation  to  the  descendants 
of  those  who  have  passed  out  of  life.     "As  an  act  of 

17  "To  one  for  whom  the  thought  of  poverty  is  depressing,  restrictions, 
measure  of  control,  and  tax  exactions  seem  but  trifling,  if  their  object  is 
to  procure  to  all  a  minimum  of  subsistence  and  security.  Such  a  one 
will  accept  his  share  of  the  obligations  and  charges  of  that  social  pre- 
vision which  regards  them  as  measures  of  safety  for  the  mass  of  men; 
the  tribute  imposed  upon  the  favorites  of  fortune  will  not  seem  to  him 
an  unjust  levy,  but  rather  a  means  of  securing  individuals  against  unjust 
loss,  which  exhausts  energy  and  partially  corrupts  the  social  organism." 
(Bourguin,  "Les  Systèmes  Socialistes"  and  "L'Évolution  Économique," 
p.  355.) 


92  RECENT   PHASES  [  Ch.  VII 

good  will,"  says  Andler/^  "let  us  admit  that  we  are 
indebted  to  the  future  generations  for  all  that  we  owe 
to  the  past."  We  ought  not  only  to  maintain  but  also 
to  increase  the  social  patrimony  that  we  have  received. 
But  who  shall  determine  the  amount  of  that  debt  and 
be  authorized  to  demand  its  execution?  Society  alone 
can  do  this.  We  are  all  debtors  and  creditors,  in  respect 
of  one  another;  moreover,  we  are  unequally  so.  Some 
men  have  been  specially  favored  ;  they  have  reaped  large 
benefits  from  an  antecedent  solidarity.  Others  have 
failed  to  receive  their  share  and  have  suffered  in  con- 
sequence. So  there  must  be  a  new  apportionment,  a 
setting  aright  of  accounts;  and  no  other  agency  than 
society  itself  can  make  the  re-adjustment.  By  making 
demands  on  the  privileged  persons,  by  indemnifying 
those  who  have  suffered  injury,  it  does  no  more  than 
satisfy  justice.  A  tax  for  the  purpose  of  compensating 
social  inequalities  is  an  act  of  strict  justice;  thus  it 
becomes  a  duty  for  the  rich  to  aid  the  poor  on  quite 
other  grounds  than  those  of  charity. 

§  66.  TJie  Doctrine  of  Social  Qiiasi-Contract.  There 
has  been  no  lack  of  objections  to  this  conception  of  the 
social  debt  and  of  the  quasi-contract.  It  must  be 
admitted,  indeed,  that  it  is  neither  very  clear,  nor  fully 
satisfying.  Can  we  really  speak  of  debt  when  none 
of  those  to  whom  payment  is  due  thinks  of  us  as  under 
obligation  to  him?  The  men  of  former  days  worked  and 
suffered  for  themselves.  "The  cave  man,"  says  Mala- 
pert," ^^  cut  and  polished  the  stone  for  his  own  use, 
and  not  for  mine."  And  if  it  be  true  that  those  of  an 
earlier  generation  labored  for  us,  or  at  least  gave  us  the 
benefit  of  their  industry,  they  have  handed  down  bur- 
dens also,  and  debts  that  we  have  had  to  pay.     We  feel 

18  "Du  Quasi  Contrat  Social,"  RMM,  p.  527. 

«»  "Essai  d'une  Philosophie  de  la  Solidarité,"  p.  104. 


§  66  ]  SOLIDARISM  Ô3 

oppressed  by  the  weight  of  their  faults,  and  sometimes 
even  of  their  crimes,  "DeHcta  majorum  immeritus 
lues."  And  if  by  an  effort  of  good  will,  which  has  ceased 
to  be  justice,  we  are  disposed  to  substitute  other  credi- 
tors for  those  who  can  no  longer  require  anything  of  us, 
how  can  this  account  be  opened  among  so  many  men 
who  are  debtors  and  creditors  at  one  and  the  same  time? 
Who  shall  be  judge  of  what  they  are  to  give  and  what 
they  are  to  receive?  Wealth  is  not  the  only  thing  to  be 
desired;  to  be  perfectly  just  we  must  take  health  and 
length  of  life  into  consideration.  "Here  is  a  man  who 
has  inherited  a  hundred  thousand  francs  and  a  mental 
disease;  make  out  his  statement."  ^o  Under  pretext 
of  striking  a  balance,  the  State  might  be  capable  of 
anything,  to  the  point  of  disregarding  all  the  rights,  or 
at  least  all  the  advantages,  previously  secured  by  its 
members.  ^^ 

What  shall  be  the  final  valuation  of  this  idea  of  quasi- 
contract,  borrowed  from  private  law,  in  which  field, 
moreover,  it  has  never  been  clearly  defined?  Is  it  not, 
as  Gény  says,  an  abuse  of  logical  abstraction?  Perhaps 
there  is  really  something  factitious  in  the  attempted 
adaptation.  What  can  be  maintained,  however,  is  that 
the  theory  of  the  quasi-contract  is  founded  on  a  principle 
applicable  as  well  to  public  as  to  private  law,  namely, 
that  no  one  should  enrich  himself  unjustly  to  the  detri- 
ment of  another.  At  the  same  time  we  may  call  at- 
tention to  the  tendency  of  courts  and  some  law  writers 
to  generalize  this  principle  which  the  Code  has  not 
stated,  and  has  applied  only  in  special  instances.  ^^ 

20  Malapert,  loc.  cit.  p.  105. 

21  See  Tarde,  BAS  v.  2,  p.  423. 

22  See  Cassation,  June  15,  1892,  Sirez,  1893.1.281,  note  of  Labbé. — 
Cass.  July  31,  1895,  Sirey,  1896.1.397.— Cass.  Oct.  18,  1897.  Dalioz 
1899.1.105.  Cf.  Ripert  and  Tesseire,  "Essai  d'une  Théorie  de 
l'Enrichissement  sans  Cause,"  RDC  1904,  pp.  727-796.  Batidry- 
Lacantinerie  and  Barde,  "Obligations,"  3d  edit.,  vol.  iv,  pp.  502-533. 


94  RECENT   PHASES  [  Ch.  VII 

§  67.  General  Review  of  Solidarism.  We  are  now  in 
a  position  to  determine  the  salient  features  of  the  Soli- 
darist  doctrine.  It  is  an  intermediary  thesis  between 
socialism  and  individualism.  "It  is  a  system  which 
occupies  a  position  halfway  up  the  ascent  to  the  region 
of  principles.  Even  as  it  holds  back  from  the  topmost 
heights,  and  indeed  from  all  inquiry  into  the  ultimate 
sources  of  justice,  so  it  declines  to  descend  so  far  as  to 
the  details  of  application.  After  proving  the  necessity 
for  new  institutions,  it  fails  to  specify  in  formal  terms 
what  shapes  they  should  assume."  ^^ 

For  one  thing  it  reacts  against  the  errors  of  indivi- 
dualism, it  endeavors  to  demonstrate  that  competition 
and  struggle  are  not  always  means  of  selection;  it 
invests  the  individual  with  a  social  significance;  tries 
to  attach  him  to  his  group,  to  make  him  an  integral 
part  of  it.  But  the  group  is  not  an  entity,  its  value  is 
no  more  than  that  of  its  constituent  members  taken 
together;  so  society  should  endeavor  to  allow  the  in- 
dividual to  pursue  his  own  ends  while  it  safeguards  the 
interests  of  others.  "Individualism,"  said  Bougie,  ^'^ 
"exists  no  longer  as  a  means,  but  as  an  end."  In  other 
terms,  the  goal  is  still  the  free  development  of  individuals, 
but  this  goal  cannot  be  attained  without  the  cooperation 
and  the  intervention  of  society.  The  power  of  indivi- 
dual initiative  is  not  enough. 

At  the  same  time  the  Solidarists  have  much  in  common 
with  the  socialists.  The  grievances  of  the  two  groups 
against  the  present  economic  régime  are  at  bottom 
very  nearly  the  same.  There  cannot  be  just  contracts 
without  a  certain  equality  of  situation  between  the 
contracting  parties.  Right  of  contract  is  an  illusion 
and  an  injustice  when  one  of  the  parties  is  all-powerful 

23  Bougie,  "Le  Solidarisme,"  p.  196, 
2<  "Solidarisme,"  p.  131. 


§671  SOLIDARISM  95 

and   the  other  defenseless.     Society,   then,   should    be 
authorized  to  intervene  and  reëstabhsh  equahty. 

S  68     Solidarism   and  Socialism.     But   it    the   boii- 
darists  and  the  sociaHsts  can,  as  is  admitted,^^  go  hand 
in  hand  for  a  part  of  the  way,  is  it  possible  to  determine 
the  point  at  which  their  paths  separate?     In  his  book 
on  "Solidarism,"  Bougie  endeavors  to  compare  and  to 
differentiate  the  two  tendencies.     The  impression  which 
we  gain  from  this  meticulous  comparison  is  that  the 
point    of    divergence    is   uncertain;  many    distinctions 
that  have  been  attempted  are  more  apparent  than  real. 
In  its  beginnings  Solidarism,  for  example,  affected  to 
ignore  the  State,  or  declined  at  least  to  have  recourse 
to  it,  to  increase  its  prerogatives  or  its  authority.     Bour- 
geois says,-  in  one  of  his  exposés:   "I  wish  to  call  your 
attention  to  the  fact  that  until  the  present  moment 
neither  to-day  nor  in  our  preceding  discussions,  have  1 
ever  pronounced  the  word  State,  and  the  reason  for  my 
never  pronouncing  it  is  that  I  have  not  felt  the  need  of 
it      It  is  really  unnecessary  for  me  to  point  out  the 
claims  of  a  reality  outside  of  us  and  above  us,  called 
the  State,  of  setting  up  this  reality  before  individuals, 
and  of  determining  the  relations  which  exist  between 
it  and  them."     Solidarity  considers  only  the  relations 
of  individuals  among  themselves,  but  as  the  individua  s 
are  themselves  factors  in  a  collective  life,  as  their  rights 
have  a  social  aspect,  there  is  no  longer  any  conflict  to 
be  feared  between  society  and  the  individual.     Individual 
rights  are  merged  with  social  rights.     The  sole  function 
of  the  State  is  to  assure  the  execution  of  the  social 
quasi-contract    existing    among    men.     The    crisis    in 
political  science,  which  originates  in  the  constant  op- 
position of  individual  and  State  rights,  is  safely  passed. 

..  Renard,  "Essai  d'une  Philosophie  de  la  Solidarité."  p.  70. 
26  "Philosophie  de  la  Solidarité."  p.  90. 


96  RECENT   PHASES  [Ch.VII 

The  barrîer  between  private  and  public  law  is  lowered; 
Andler  believes  even  that  it  is  disappearing.^^  And  we  may 
deliberately  oppose  this  conception  to  that  of  socialism, 
which  exalts  the  State,  expects  everything  from  it  and 
makes  the  organization  of  labor  an  administrative  service. 

Yet  if  we  observe  more  closely,  we  see  that  the  differ- 
ence between  the  consequences  of  the  two  doctrines 
is  much  less  than  it  at  first  appears  to  be.  Solidarism 
is  essentially  an  interventionist  doctrine,  even  while  it 
guards  against  being  so;  the  rôle  which  it  assigns  to  the 
State,  of  sanctioning  the  quasi-contract,  is  big  with 
consequences.  Moreover,  the  State  does  not  confine 
itself  to  giving  its  sanction;  it  has  to  determine,  to 
specify,  the  credit  and  the  debit  in  each  person's  ac- 
count. This  sanction  of  the  social  quasi-contract  must 
be  manifested,  as  Bourgeois  recognizes,^^  "by  an  obli- 
gatory contribution  from  all  the  associates,  to  the  un- 
avoidable expenses  incurred  by  the  institutions  which 
serve  in  the  conservation  of  society,  in  the  safeguarding 
of  individual  rights,  and  in  the  accomplishment  of  the 
duties  of  solidarity."  It  is  precisely  this  contribution 
which  may  seem  disquieting.-^ 

§  69.  The  Present  Status  of  Solidarism.  So  Solidarism, 
which  had  in  the  beginning  a  somewhat  limited  program, 
was  destined  to  be  led  to  overreach  its  ambitions,  to 
enlarge  its  field  of  action.  However,  as  Bougie  reminds 
us,^"  the  Solidarist  tendencies,  even  when  carried  to  the 

2'  "An  event  has  taken  place  which,  candidly  viewed,  is  comparable 
to  the  profoundest  revolutions  that  have  taken  place  in  the  law,  and 
which,  to  our  surprise,  has  scarcely  been  perceived.  There  is  no  longer 
any  distinction  between  public  and  private  law."  RMM  1897, 
p.  521. 

28  "Philosophie  de  la  Solidarité,"  p.  92. 

29  "I  see  a  disquieting  judicial  retinue  arrive  in  state.  I  see  the  judge, 
the  bailiff,  the  gendarme,  the  revenue-officers,  and  I  am  far  from  being 
reassured."     Albert  Sorel,  BAS  1903,  v.  ii,  p.  392. 

"•Loc.  cit.,  p.  171. 


§69]  SOLIDARISM  97 

extreme,  will  stop  short  of  integral  socialism,  at  any 
rate  of  unified  and  revolutionary  socialism.  Solidarism 
will  urge  neither  the  suppression  of  private  property 
nor  strife  between  classes.  It  is  true  that  it  surrounds 
private  ownership  with  restrictions  imposed  in  the 
interest  of  society,  and  that  it  conceives  a  long  series  of 
transitions  between  individual  and  communal  owner- 
ship.^^ It  is  true  also  that  the  strife  between  the  classes 
draws  closer  the  bonds  of  solidarity  within  each  class, 
but  Solidarism  brings  into  the  light  all  that  unites  men 
in  spite  of  class  interest.  It  also  adheres  firmly  to  the 
idea  of  national  feeling  and  shows  us  that  the  great 
historic  groupings  which  furnish  a  setting  for  the  individ- 
ual are  needed  to  maintain  the  coherence  and  unity  of 
law  and  to  prevent  the  aggravation  of  social  strife.^^ 

We  shall  learn  in  the  near  future  whether  this  Soli- 
darist  doctrine  has  been  able  to  attain  its  goal,  to  serve 
as  the  ideal  for  a  democratic  party  anxious  to  bring 
about  reforms  while  there  is  still  time.  Let  us  hope  that 
it  may,  even  though  we  must  aver  that  its  power  of 
expansion  seems  to  us  somewhat  lessened.  Finally, 
it  advances  the  idea  of  justice;  it  annexes  a  domain 
which  has  been  considered  as  belonging  to  the  sphere  of 
charity .^^  It  has  been  reproached  for  being  rather  vague  ; 
but  it  is  also  on  that  very  account  more  supple  and 
more  capable  of  arousing  generous  feelings.  It  errs  in 
assuming  to  be  a  scientific  moral  code  when  in  reality 
it  is  founded  on  a  sentiment,  a  belief;  but  even  that, 
Boutroux  observes,^^  is  entirely  legitimate,  and  it  is  not 

'1  See  Rauh,  "Propriété  Individuelle  et  Propriété  Solidaire  dans  l'Essai 
d'une  Philosophie  de  la  Solidarité,"  pp.  163ff. 

^^Saleilles,  "Union  pour  la  Vérité,"  Feb.  12,  1906,  pp.  348-349. 

"  Cf.  Gide,  "Justice  et  Charité  dans  la  Morale  Sociale,"  p.  214. 

3*  "Solidarity,  which  Solidarism  erects  into  a  dogma,  is  at  bottom  a 
sentiment,  a  belief,  an  aspiration.  It  is  that  sympathy  which  tends 
to  come  to  the  aid  of  the  disinherited,  and  to  utilize  to  this  end  the  forces 


98  RECENT   PHASES  [Ch.vII 

by  this  trait  that  Solidarism  is  differentiated  from  other 
philosophies  of  law. 

of  society,  since  those  of  individuals  are  insufficient.  It  is  that  common 
desire  to  give  over  to  organized  society  the  duties  of  beneficence  which 
are  recognized  by  individuals.  Whoever  will  give  credit  to  Solidarism 
for  this  desire,  for  this  faith,  will  find  his  own  arguments  taking  shape 
and  gaining  validity.  His  logic  is  conclusive  if  he  but  recognizes  its 
artificiality."     (Boutroux.  BAS  1903,  v.  2,  405;   cf.  p.  407.) 


s  70]  PRAGMATISM  99 


CHAPTER  VIII 
PRAGMATISM 

DERIVATION  AND  EXPLANATION  —  A  MIDDLE  GROUND 
BETWEEN  THE  IDEAL  AND  THE  PRACTICAL —EXAMPLES 
OF  PRAGMATIC  METHOD  —  THE  BROAD  SCOPE  OF  PRAG- 
MATISM —  ITS  RELATION  TO  VARIOUS  EARLIER  DOC- 
TRINES —  PRAGMATISM  AND  SCIENCE  —  BLONDEL's 
THEORY  —  THE  DEFECTS  OF  PRAGMATISM. 

§  70.  Derivation  and  Explanation.  The  name  Prag- 
matism^ designates  a  method,  a  tendency,  a  program 
of  action  rather  than  a  doctrine.  The  word  "prag- 
matic," formed  by  derivation  from  irpay/nariKo^  (relating 
to  facts)  expresses  what  is  characteristic  of  this  attitude, 
the  desire  not  to  be  interested  in  ideas  for  themselves, 
but  to  judge  of  them  according  to  their  results,  their 

1  The  Pragmatistic  movement  which  has  developed  rather  recently 
in  England  and  America  and  made  rapid  progress,  is  represented  chiefly 
by  William  Ja7nes  and  F.C.S.  Schiller.  Jatnes's  lectures  on  Pragmatism, 
delivered  in  Boston  and  New  York,  were  published  in  London  in  1907. 
"Studies  in  Humanism,"  by  Schiller,  appeared  in  1908  (Macmillan, 
London;  Paris,  Alcan,  trans.  Jankelevitch  announced  1909).  An  older 
article  by  Pierce  may  also  be  cited,  "How  to  Make  our  Ideas  Clear" 
(Popular  Science  Monthly,  Jan.  1908).  That  part  of  the  pragmatic  con- 
ception which  is  peculiar  to  Pierce  styles  itself  "pragmaticism."  Schiller, 
on  the  other  hand,  calls  the  system  "Humanism,"  in  order  to  indicate 
that  the  philosophical  problem  must  be  stated  and  if  possible  solved 
as  a  problem  of  humanity,  avoiding  the  a  priori  and  the  search  for  the 
absolute,  and  taking  into  account  limits  of  experience  and  exigencies  of 
life.  In  France,  the  subject  of  Pragmatism  has  stimulated  in  a  very 
short  time  a  considerable  series  of  studies.  See,  in  particular,  Lalande, 
"Pragmatisme  et  Pragmaticisme"  (RP  1906);  Parodi,  "Le  Pragma- 
tisme d'après  MM.  James  et  Schiller"  (RMM  1908);  Boutroux,  "Science 
et  Religion,"  1908;  Marcel  Hébert,  "Le  Pragmatisme,"  1908;  Bourdeau, 
"Pragmatisme  et  Modernisme,"  1909. 


100  RECENT   PHASES  [Ch.  VIII 

practical  consequences,  inasmuch  as  the  value  of  a 
doctrine  is  determined  by  its  effects. 

§  71.  A  Middle  Ground  between  the  Ideal  and  the 
Practical.  Pragmatism  is  presented  primarily  as  a 
means  of  reconciling  the  demands  of  idealism  and  of 
action.  No  man  can,  with  impunity,  think  without 
acting  or  act  without  thinking.  Whatever  tends  to 
separate  thought  from  action  is  misleading,  if  not  calami- 
tous. The  man  of  thought  who  shrinks  from  action,  who 
attempts  by  sheer  intellectual  effort  to  solve  the  prob- 
lems which  vex  mankind,  and  who  stops  to  ponder  all 
things,  condemns  himself  to  impotency  and  scepticism. 
He  questions  the  possibility  of  knowledge,  the  existence 
of  the  exterior  world,  liberty,  and  morals.  Unless  he 
can  rid  himself  of  the  obsession  of  his  own  thought,  he 
becomes  incapable  of  living.  The  man  who,  as  the  result 
of  temperament  or  with  deliberate  intention,  takes  the 
opposite  course,  however,  that  is,  of  shunning  all  in- 
tellectual preoccupations,  all  problems  which  the  mind 
is  unable  to  solve,  will  have  no  happier  a  fate.  He  will 
find  it  impossible  to  regulate  or  to  organize  his  life; 
he  will  feel  at  times  a  sense  of  loathing  for  a  life  so  want- 
ing in  perspective  and  in  the  means  of  procuring  any 
other  than  purely  material  satisfactions.  A  man  of 
either  type  will  find  happiness  only  through  the  attain- 
ment of  that  conviction  which  is  best  adapted  to  the 
exigencies  of  his  life,  which  will  reassure  him,  encourage 
him,  and  stimulate  his  zeal  and  his  hope.  These  are 
the  results  by  which  he  will  recognize  its  superiority. 

§  72.  Examples  of  Pragmatic  Method.  In  many  cases, 
indeed,  just  such  equilibrium  is  established.  Both  the 
supporters  and  the  adversaries  of  the  doctrine  of  free 
will  conduct  themselves  in  life  as  though  they  believed 
in  freedom.  They  form  projects,  put  them  into  exe- 
cution, and  congratulate  themselves  when  they  have 


§  72  ]  PRAGMATISM  101 

succeeded,  or  if  they  chance  to  fail  reproach  themselves 
for  not  having  done  all  that  was  possible.  That  is  the 
pragmatic  solution  of  the  problem  of  freedom. 

The  same  method  can  be  applied  to  the  problems  of 
morals  and  religion.  "Let  us  suppose,"  said  Lalande,^ 
"two  contradictory  propositions:  It  is  right  that  the 
wicked  should  be  punished  in  the  other  world;  and  the 
punishment  of  the  wicked  in  after  life  must  be  rejected 
as  repugnant  to  our  minds.  Moreover,  let  us  suppose 
it  impossible  to  demonstrate  one  of  these  propositions 
in  a  way  to  make  the  other  untenable.  Let  us  leave 
the  metaphysicians  to  argue  among  themselves,  while 
we  come  to  results.  We  will  suppose  that  each  of  these 
two  propositions,  in  turn,  is  true.  It  is  evident,  if 
universal  belief  in  the  first  proposition  be  granted,  that 
men  would  act  otherwise  than  if  all  were  united  in  an 
antagonism  to  punishment  in  the  after  life.  It  is  also 
clear  that  the  conduct  of  those  who  believed  in  such 
punishment  would  be  decidedly  more  correct  than  that 
of  those  who  did  not  believe  in  it  at  all;  whence  it 
follows  that  the  first  proposition,  since  it  is  good  in  its 
effects,  is  true.''  In  fact,  William  James  gives  no  other 
reasons  to  justify  his  faith  in  the  power  of  human  action, 
in  the  future  life,  and  in  the  certainty  of  salvation. 
"The  only  real  reason  I  can  think  of  why  anything  should 
ever  come  is  that  someone  wishes  it  to  be  here.  It  is 
demanded — demanded,  it  may  be,  to  give  relief  to  no 
matter  how  small  a  fraction  of  the  world's  mass.  This 
is  living  reason,  and  compared  with  it  material  causes 
and  logical  necessities  are  spectral  things."  ^ 

§  73.  The  Broad  Scope  of  Pragmatism.  Thus  every 
man  can  seek  and  find  at  will  the  conviction  or  the  belief 
best  adapted  to  the  needs  of  his  life  and  thought.     Hence 

»  RP  1906,  V.  i.  p.  141. 

«8th  lecture,  cited  by  Parodi,  RMM  1908,  p.  100. 


102  RECENT   PHASES  [Ch.  VIII 

the  variety  of  forms  and  aspects  of  Pragmatism,  which 
an  ItaHan  Pragmatist,  Papini,^  Hkens  to  the  corridor  in 
a  great  mansion,  opening  into  a  hundred  chambers. 
In  one  of  these  chambers  there  is  a  man  kneehng  on  a 
prayer-stool,  in  another  a  scientist  is  working  in  his 
laboratory,  in  still  another  a  metaphysician  sits  rapt  in 
contemplation.  These  various  chambers  are  so  many 
varieties  of  Pragmatism;  they  are  separate,  but  they 
communicate  with  one  another  and  all  open  into 
the  same  corridor;  and  all  those  who  dwell  within 
those  chambers  find  the  same  shelter,  and  the  same 
security. 

§  74.  Its  Relation  to  Various  Earlier  Doctrines.  Prag- 
matism brings  to  its  adepts  not  only  a  variety  of  possible 
solutions;  it  assumes  at  the  same  time  to  develop  and 
to  reconcile  some  very  old  doctrines.  "A  new  name 
for  some  old  ways  of  thinking,"  is  the  sub-title  which 
William  James  gives  to  his  book.  We  may  liken  Prag- 
matism to  a  crossroads,  where  all  of  these  doctrines  meet, 
each  one  constituting  an  avenue  of  approach.  Thus 
Pragmatism  serves  as  a  continuation,  an  extension,  of 
empiricism.  Utilitarianism,  Positivism,  Kantianism, 
voluntarism,  and  fideism.^  To  judge  a  doctrine  by  its 
fruits  is  to  act  empirically,  is  to  let  experience  prevail 
over  reasoning.  To  consider  as  truest  and  best  whatever 
doctrine  conforms  the  most  nearly  to  our  needs,  is  to  carry 

4  To  tell  the  truth,  the  Italian  disciples  of  James,  Giovanni  Papini 
and  Prezzolini,  have  considerably  changed  the  aspect  of  Pragma- 
tism by  an  admixture  of  fancy  and  dilettantism.  See  Bourdean,  pp. 
30  and  85. 

6  ["Fideism"  and  "laïcism"  (pp.  76,  85  ante)  have  the  right  to  be 
regarded  as  something  better  than  neologisms.  "Fideism,"  though  the 
word  does  not  occur  in  the  Oxford  and  Century  dictionaries,  is  treated 
by  the  editors  of  the  Catholic  Encyclopaedia  as  sufficiently  significant 
to  have  an  article  devoted  to  it.  "Laicism,"  which  may  be  con- 
sidered an  admissible  derivative  of  the  English  words  "laïc,"  "laicize," 
denotes  a  movement  for  whose  recent  developments  the  reader  may  be 
referred  to  the  article  on  "Laicization"  in  the  same  work.  —  Ed.] 


§74l  PRAGMATISM  103 

Utilitarianism  to  its  furthest  extreme.  From  Positivism, 
Pragmatism  borrows  its  conception  of  science;  to  know 
that  in  order  that  we  may  foresee,  to  foresee  in  order 
that  we  may  perform.  It  borrows  from  the  same  source 
a  disdain  for  metaphysics  and  pure  intellectuaHsm. 
Kant,  in  his  turn,  is  looked  upon  as  a  forerunner  of 
Pragmatism,  through  his  conception  of  the  primacy  of 
the  practical  reason.  The  pure  reason  is  powerless;  the 
practical  reason  to  which  Kant  entrusts  himself  for 
guidance  is  no  other  than  a  form  of  Pragmatism.  The 
Pragmatists  profess  to  have  a  claim  also  on  Schopen- 
hauer, although  his  pessimism  ill  accords  with  the 
essential  datum  of  their  thesis.  He  belongs  to  them, 
however,  at  least  by  reason  of  the  importance  which  he 
assigns  to  the  rôle  of  the  will,  to  the  influence  which 
it  exercises  on  the  intelligence  and  on  society.  Finally, 
Pragmatism  includes  a  goodly  share  of  the  fideism  of 
Pascal:  the  heart  has  its  reasons  which  the  mind  does 
not  know;  we  must  make  good  men  desire  religion 
to  be  true.  It  is  proper  to  recall,  however,  that  Pascal 
added,''  "and  then  show  them  that  it  is  true." 

§  75.  Pragmatism  and  Science.  Finally,  Pragmatism 
makes  skillful  use  of  the  present  tendencies  of  scientific 
philosophy.  The  sciences  are  based  on  a  certain  number 
of  principles  and  more  or  less  arbitrary  conventions, 
doubtless  suggested,  but  not  dictated,  by  experience. 
The  scientist  borrows  from  reality  whatever  perceptions 
it  has  to  give  him,  but  he  makes  a  choice  among  these 
perceptions;  he  eliminates  some  and  retains  others. 
It  is  the  savant,  according  to  Leroy,  who  makes  scientific 
facts,  or,  if  you  prefer,  who  makes  veritable  scientific 

«We  must  begin  by  showing  that  religion  is  not  at  all  opposed  to 
reason,  next  that  it  is  worthy  of  veneration;  then  we  must  arouse  a 
respect  for  it,  next  make  it  appear  pleasing,  make  good  men  want  it 
to  be  true;  and  then  show  that  it  is  true."  ("Pensées,"  ed.  Havet, 
art.  xxiv,  26.) 


104  RECENT   PHASES  [  Ch.  VIII 

facts.  '  "Science,"  he  says  also,  "tends  toward  the 
useful  rather  than  the  true;  it  grasps  only  the  utilizable 
part  of  truth."  ^ 

§  76.  BlondeVs  Theory.  The  tendencies  of  religious 
philosophy  are  also  comparable  with  those  of  Pragma- 
tism. Thus  Maurice  Blondel's  thesis  on  "Action,"  by 
which  he  has  attracted  so  much  notice,  may  be  regarded 
as  a  form  of  Pragmatism.  Curiously  enough,  Blondel 
had  chosen  the  name  "Pragmatism"  to  characterize 
his  doctrine  without  having  seen  it  previously,  in  the 
belief  that  he  had  originated  the  word.  This  is  not  say- 
ing that  the  two  doctrines  are  identical;  but  they  at 
least  reach  the  same  end.  Blondel  is  a  Pragmatist  to 
the  extent  of  justifying  the  existence  of  the  super- 
natural by  its  necessity,  and  holding  it  to  be  one  of 
the  conditions  of  action.  Man,  in  his  actions,  exceeds 
the  data  of  experience;  in  order  to  satisfy  his  own  needs 
or  to  keep  a  balance  between  desire  and  the  power  to 
achieve,  he  must  believe  in  something  which  is  greater 
than  himself;  and  that  belief  is  an  act  of  religious 
faith  .9 

§  77.  The  Defects  of  Pragmatism.  If  it  is  hard  to 
repudiate  Pragmatism  entirely,  it  also  seems  impossible 
to  accept  it  in  its  entirety.  We  are  all  Pragmatists, 
more  or  less,  when  we  attempt  to  form  an  opinion  for 
ourselves  that  will  be  compatible  with  the  end  and  the 
conditions  of  action.  But  we  go  to  an  extreme  if-  we 
attempt  to  free  ourselves  from  the  control  of  the  reason. 
We  but  deceive  ourselves  if  we  confuse  the  true  with 

'  "Dogma  et  Critique,"  p.  334. 

8  Ibid.,  p.  333. 

9  It  would  not  be  hard  to  discover  the  influence  of  Pragmatism  in 
numerous  other  doctrines.  Taine,  as  Bourdeau  says  (p.  45),  conforms 
to  the  pragmatic  method  when  he  points  out  the  effects  of  hereditary 
bias  and  the  social  benefits  of  Christianity.  (See  also  the  discussion 
of  the  analogy  of  Bergson  s  philosophy  to  the  Pragmatist  doctrines  in 
Bourdeau' s  "Pragmatisme  et  Modernisme,"  pp.  153  and  199.) 


§  77  ]  PRAGMATISM  105 

the  useful.     If  we  must  believe  in  the  objective  import 
of  truth  before  we  can  think  or  act,  "we  may  find,"  to 
quote  Parodi,  "that  it  is  pragmatically  impossible  for  us 
to  limit  ourselves  to  Pragmatism."  ^° 
"RMM  January  1908,  p.  112. 


106  RECENT   PHASES  [Ch.  IX 

CHAPTER  IX 
NATURAL  LAW  WITH  VARIABLE  CONTENT 

COMPARISON  OF  OLD  AND  NEW  VIEWS  —  ATTITUDE  OF 
THE  HISTORICAL  SCHOOL  —  ESSENTIAL  LIMITATIONS  OF 
THE  DOCTRINE  OF  NATURAL  LAW  —  THE  RELATIVITY 
OF  NATURAL  LAW  — A  NEW  INTERPRETATION  —  EVOLU- 
TION IN  THE  LAW  OF  CONTRACT. 

§  78.  Comparison  of  Old  and  New  Views.  Even  if  it 
be  true  that  we  are  returning  in  this  present  day  to  the 
conceptions  of  natural  law,  yet  these  conceptions  differ 
notably  from  those  which  were  commonly  accepted  in 
an  earlier  period.  Natural  law,  as  the  old  school  con- 
ceived it,  was  universal,  immutable;  for  all  questions 
of  positive  law,  it  offered  an  ideal  solution,  satisfying 
in  every  respect  ;  and  the  human  reason  could  and  should 
find  this  solution.  There  were,  so  to  speak,  two  parallel 
systems  of  law  which  were  constantly  being  compared, 
positive  law  on  the  one  hand  and  natural  law  on  the 
other.  Positive  law  was  the  contingent,  imperfect 
system;  natural  law,  the  ideal  and  absolute.  The 
first  tended  inevitably  to  approach,  to  merge  into,  the 
second.  "Natural  law,"  says  Oudot,^  "embraces  those 
rules  which  we  should  like  to  see  transformed  immediately 
into  positive  laws." 

§79.  Attitude  of  the  Historical  School.  Of  course 
the  historical  school  made  short  work  of  such  claims. 
It  pointed  out  how  institutions  are  formed  and  how 
modified,  under  what  influences  these  modifications  oper- 

1  "Premiers  Essais  de  Philosopliie  du  Droit,"  p.  67, 


§79]  A  CHANGINCx  NATURAL  LAW  107 

ate,  and  to  what  needs  they  correspond.  Every  law  is 
adapted  to  a  definite  social  and  moral  state,  in  relation 
to  which,  it  is  declared,  each  particular  law  is  in  a  sense 
the  best  possible.  For  example,  the  question  of  freedom 
of  testamentary  disposition  does  not  arise  in  a  society 
which  practises  family  co-ownership;  such  freedom 
would  seem  essentially  unjust,  because  it  would  inevit- 
ably have  the  effect  to  despoil  and  disorganize  the  family. 
If  we  are  to  understand  it  and  permit  its  existence,  we 
must  presuppose  a  régime  of  free  individual  ownership. 

Thus  it  is  not  only  the  positive  system  of  law  that 
varies;  it  is  also  the  so-called  ideal  system,  which  is 
itself  contingent  and  arbitrary,  bound  to  undergo  the 
influence  of  its  time,  of  its  environment,  and  of  individual 
characters.  "The  founders  use  this  phrase"  (natural  law), 
says  Bentham,^  "as  if  there  were  a  code  of  natural 
laws;  they  appeal  to  these  laws,  they  cite  them,  they 
literally  oppose  them  to  the  laws  of  the  legislators,  and 
they  do  not  perceive  that  these  natural  laws  are  of  their 
own  invention." 

§  80.  Essential  Limitations  of  the  Doctrine  of  Natural 
Law.  If  certain  representatives  of  the  school  of  natural 
law^  still  tend  to  confuse  the  art  of  legislation  and  the 
philosophy  of  law,  others^  make  a  clear-cut  distinction 
between  the  two,  and  willingly  concede  that  natural 
law  does  not  furnish  ready  remedies  and  solutions  for 
all  problems.  What  they  do  demand  of  it  is  orientation, 
direction  in  matters  of  procedure  for  example;  they 
demand  a  principle  whose  object  shall  be  to  safeguard 
the  right  of  self-defense,  the  freedom  of  witnesses,  the 

2  "Principes  de  la  Législation,"  chap,  xiii,  Brussels  edition,  1840,  v.  1, 
p.  46.     [Cf.  footnote  7,  p.  503  post. —  Ed.] 

^Franck,  "Philosophie  du  Droit  Ci-v'û"  ;  Be  an  s  s  ire,  "Les  Principes  du 
Droit." 

*Boistel,  "Philosophie  du  Droit,"  v.  i,  p.  2;  Beiidant,  "Individu  et 
État,"  p.  36. 


108  RECENT  PHASES  [  Ch.  IX 

impartiality  of  the  judge;  but  details  of  procedure  are 
by  nature  contingent.  For  all  this  regulation,  the 
legislator  keeps  in  mind  the  various  elements  at  his 
command,  trying  to  base  upon  them  the  best  possible 
conclusion;  he  has  recourse  to  the  method  of  obser- 
vation, he  proceeds  by  research,  he  consults  statistics; 
all  previous  experiences  are  taken  into  consideration. 

§  81.     The    Relativity    of    Natural   Law.     We    must 
likewise  acknowledge,  although  with  some  reservations, 
that  the  direction  given  by  natural  law,  instead  of  being 
always  constant,   is  somewhat  variable.     Indeed,    the 
same  thing  may  be  said  of  the  juridical  ideal  as  has  been 
said  of  the  moral.     "The  moral  code  is  absolute,  and 
founded  on  the  idea  of  perfection,  only  in  its  form-,  in 
content  it  is  relative,  with  a  tendency  toward  a  perfect 
future  realization  of  its  ideal. "^    The  desire  to  reconcile 
the  juridical  ideal  with  the  laws  of  nature  implies  a 
variable  element,  due  to  the  complexity  of  human  nature, 
which  holds  up  before  our  aspirations  certain  desiderata, 
such  various  qualities  as  pleasure,  courage,  intelligence, 
goodness,  and  devotion.     Such   and  such  an  element 
may  appear  predominant,   and   will    therefore  modify 
our    conceptions.     Many    transformations    have    been 
wrought  in  the  idea  of  penal  justice,  at  first  confused 
with  the  idea  that  the  severity  of  vengeance  should 
equal  the  crime,  modified  gradually  by  consideration 
of  the  motive  and  circumstances  of  the  deed,  and  by 
taking  into  account  accident  and  legitimate  self-defense.^ 
"In  the  field  of  private  law,"  says  Labbé,''  "where  the 
Roman  system  placed  matters  of  obligation  on  a  basis 
of  such  apparent  firmness,  we  see  to-day  new  concep- 
tions being  brought   into  view.     In   the  making  of   a 

i Bernes,  "Morale,"  p.  12. 

»Labbé,  "Préface  du  Droit  Romain  de  Cuq,"  p.  ii. 

I  Ibid.,  p.  xiv. 


§81]  A  CHANGING  NATURAL  LAW  109 

contract,  the  will  of  the  creditor  at  first  appeared  to  be 
the  chief  element,  especially  in  the  stipulation.  The 
stipulator  fixed  upon  the  thing  which  it  was  to  be  his 
right  to  demand,  and  the  compliance  of  the  debtor 
completed  and  perfected  the  obligation.  Next,  the  two 
parties  were  on  an  equal  footing  in  contracts  resting  on 
mere  consent;  the  meeting  of  wills,  in  whatever  order 
they  were  declared,  made  fast  the  legal  knot.  An 
already  famous  project  of  law  continues  the  evolution. 
The  will  of  the  debtor  tends  to  predominate  among 
the  elements  which  constitute  the  source  of  the  obli- 
gation. If,  in  order  to  receive  the  benefit  of  it,  the 
creditor  puts  in  a  timely  appearance,  no  more  is  re- 
quired of  him.  These  three  successive  forms  have 
satisfied  the  same  demand  for  justice.  Evolution  is 
everywhere  apparent  as  the  method  and  the  agent  of 
progress." 

§  82.  A  New  Interpretation.  Similarly  we  see  to-day 
new  principles  of  interpretation  either  replacing  those 
formerly  in  operation  or  taking  a  place  beside  them. 
Thus  many  acts  of  injury  formerly  regarded  with  in- 
difi"erence  by  the  social  power  are  to-day  thought  to 
demand  reparation.  Indeed  this  reparation  can  be 
claimed  on  a  twofold  basis.  Either  the  author  of  the 
wrongful  act  is  called  to  account  for  the  part  he  has 
taken,  and  is  declared  responsible;  or,  without  any 
fixing  of  responsibility,  it  is  held  just  that  such  a  person 
take  upon  himself  a  part  or  all  of  the  risks.  In  the  first 
case,  the  question  is  one  of  fault;  in  the  second,  one  of 
risk.  On  the  subject  of  responsibility,  the  law  formu- 
lates a  very  general  principle;  in  the  matter  of  risks, 
it  confines  itself  to  apportioning  the  risks  among  a  given 
number  of  cases.  For  the  settlement  of  cases  outside 
this  number,  the  interpreters  seek  to  discover  and  to 
make  known  the  principle    by  which    they  should    be 


no  RECENT   PHASES  [  Ch.  IX 

guided.  A  new  conception  is  taking  its  place  beside  the 
old ,  without  supplanting  it  ;  we  shall  have  to  learn  to  take 
into  account  both  the  old  conception  and  the  new.^ 

§  83.  Evolution  in  the  Law  of  Contract.  The  prin- 
ciple that  the  contract  constitutes  the  law  governing 
those  who  are  party  to  it  has  undergone  manifest  devel- 
opment. It  insures  respect  for  the  word  passed,  to  find 
the  origin  of  the  engagement  in  agreement  of  intention. 
Yet  this  principle  has  been  left  far  behind.  There  is 
now  a  tendency  to  consider  no  contract  worthy  of 
respect  unless  the  parties  to  it  are  in  relations  not  only 
of  liberty,  but  also  of  equality.  If  one  of  the  parties  be 
without  defense  or  resources,  compelled  to  comply 
with  the  demands  of  the  other,  the  result  is  a  suppression 
of  true  freedom.  Hence  the  increasing  number  of  restric- 
tions upon  the  principle  that  the  law  simply  validates 
the  agreement.  The  formula  "any  agreement  to  the 
contrary  notwithstanding"  seems  to  be  coming  gener- 
ally into  vogue  in  labor  legislation.  The  application  of 
the  theory  of  the  misuse  of  individual  rights,  the  ex- 
tension of  the  powers  of  the  judge,  the  right  conferred 
upon  him  by  articles  133  and  138  of  tb.e  German  Civil 
Code,^  weaken  the  old  principle  and  diminish  its  rigor. 
Thus  has  the  notion  of  contract  made  progress,  in  private 
law.  The  conception  of  individual  right  has  been 
broadened;  society  and  the  individual  ha\e  a  clearer 
consciousness  of  what  each  owes  to  the  other. 

8  Cf.  Marc  Desserteaux,  "Des  Accidents  du  Travail  que  Donnent 
Droit  à  Plusieurs  Indemnités,"  introduction,  p.  2. 

9  "133.  In  interpreting  a  declaration  the  actual  intention  is  to  be  ascer- 
tained and  the  literal  sense  of  the  expression  is  not  to  be  adhered  to. 

"138.  A  transaction  in  violation  of  good  morals  is  void.  Void  in 
particular  is  a  transaction  by  which  one,  in  taking  advantage  of  the  dis- 
tress, light-headedness,  or  inexperience  of  another,  obtains  for  some 
consideration  to  himself  or  to  a  third  party  any  profits  or  the  promise 
of  the  same,  which  so  exceed  the  value  of  the  consideration  that  according 
to  the  circumstances  the  profits  are  in  striking  disproportion  to  the 
consideration."     (Loewy's  translation.) 


§83]  A  CHANGING  NATURAL  LAW  111 

Thus,  natural  law  is  not  incompatible  with  the  law  of 
evolution;  it  should  not  attempt  "to  embody  positive 
and  definitive  ideas  in  its  assertions  and  conclusions."  i" 
To  use  Stammler's  ^^  very  expressive  phrase,  it  has, 
inevitably,  a  "variable  content"  (ein  Naturrecht  mit 
wechselndem  Inhalt).^^ 

'^"Labbê,  "Préface  du  Droit  Romain  de  Cuq,"  p.  13. 

^^  Stammler ,  "L'Économie  Social  et  le  Droit  d'après  la  Conception 
Historique  Matérialiste,"  p.  685.     Cf.     Saleilles,  RDC  1902,  p.  97. 

12  "The  invariable  fact,"  says  Saleilles,  "is  that  there  is  a  justice  which 
must  be  made  to  prevail  in  the  world;  it  is  the  feeling  that  we  owe  to 
all  men  a  respect  for  their  rights,  as  measured  by  social  justice  and  social 
order.  But  what  shall  be  this  measure,  this  justice,  this  order?  No 
one  can  tell  a  priori.  The  solution  of  all  these  questions  depends  on 
the  social  facts  with  which  these  rights  come  into  contact;  and  these 
facts  vary;  they  undergo  a  constant  development  and  transformation. 
But  it  depends  also  on  our  conceptions  of  justice,  of  order,  of  the  authority 
and  freedom  of  social  and  individual  rights,  of  the  relative  preponderance 
which  must  be  established  in  the  incessant  conflict  among  these  op- 
posed forces;  and  this  proportion  also  is  subject  to  variation  and  change. 
According  to  the  disorders  caused  by  the  preponderance  of  one  force 
or  another,  the  factors  may  need  to  be  reversed.  Our  conception  of  the 
social  order  is  thereby  changed,  and  a  counter-blow  dealt  to  our  idea 
of  social  justice."     (Loc.  cit.,  p.  98.) 


112  RECENT  PHASES  [  Ch.  X 

CHAPTER  X 
FREE  SCIENTIFIC  RESEARCH 

TRADITIONAL  METHODS  OF  INTERPRETATION—  GÊNY's 
PROJECT  OUTLINED  —  THE  INTERPRETER'S  PRIVILEGE  — 
BOTH  PURE  AND  PRACTICAL  REASON  ARE  REQUISITE  — 
SUBJECTIVITY  NOT  AN  ESSENTIAL  CHARACTERISTIC  OF 
THE  PRINCIPLES  OF  JUSTICE  —  THE  USES  OF  ANALOGY  — 
GÉNY's  OBJECTIVE  METHOD  —  LIMITATIONS  UPON  THE 
INTERPRETER  —  POSITIVE  PRINCIPLES  OF  FREE  RE- 
SEARCH —  GÊNY'S  POSITION  CONSIDERED. 

§  84.  Traditional  Methods  of  Interpretation.  "Free 
scientific  research"  is  the  means  by  which  Gény  proposes 
that  legal  idealism  may  directly  influence  the  interpreta- 
tion of  law.  In  his  important  and  well-known  works  — 
his  study  of  the  method  of  interpretation  in  positive 
private  law/  and  his  discourse  on  the  conception  of  posi- 
tive law  just  prior  to  the  1900s,  Gény  shows  how  the 
force  of  natural  law  had  in  a  way  spent  itself  in  the  cul- 
minating act  of  codification.  The  idea  of  a  right  con- 
ceived by  reason  leads  logically  to  the  rule  of  formal  law, 
to  an  exaggeration  of  the  element  of  legality.  Formal 
law  is  reason  formulated  and  sovereign;  it  can  and  it 
should  foresee  and  decide  all  things,  and  the  sole  function 
of  the  judge  is  to  make  certain  that  it  is  applied.  Accord- 
ing to  the  dominant  thought  at  the  time  of  the  Revolution, 
the  reign  of  formal  law  was  to  abolish  all  difficulties  of 

I  "Méthode  d'Interprétation  et  Sources  en  Droit  Privé  Positif,"  1899. 
[This  important  book,  so  widely  discussed  in  all  Continental  countries, 
will  shortly  go  into  a  second  edition;  the  first  edition  being  long  out  of 
print.     A  chapter  from  it  will  appear  in  vol.  ix  of  the  present  Series. — Ed.  J 


§84]  FREE  SCIENTIFIC  RESEARCH  113 

interpretation.  Commentaries  served  only  to  revive 
the  despicable  art  of  chicane;  good  sense  and  willingness 
to  respect  the  law  could  and  should  serve  every  purpose. 
You  will  recall  Napoleon's  irritated  surprise  at  the 
appearance  of  Toullier's  first  commentary  and  the  re- 
mark which  he  is  said  to  have  made.  It  is  true  that  not 
all  of  his  advisers  shared  his  sentiment;  most  of  them 
believed  that  even  with  codification  completed,  juridical 
interpretation  was  still  needful,  and  that  it  should  be 
expressed  with  some  degree  of  liberty .^  The  first  com- 
mentators upon  the  Code,  Merlin,  Proudhon,  Duranton, 
TouUier,  and  Duvergier,  were  of  the  same  mind. 

But  when  we  come  to  the  second  half  of  the  century, 
we  find  the  critics  confining  themselves  to  a  study  of  the 
Code,  and  applying  to  it  the  method  of  interpretation 
described  by  Gény.  This  proceeds  from  the  idea  that 
positive  law  must  furnish  every  necessary  juridicial 
solution.  The  legislator  is  to  be  credited  with  having 
foreseen  and  settled  all  things;  if  the  text  does  not  con- 
tain a  specific  solution  for  every  difficulty  which  may 
present  itself,  it  at  least  embodies  a  principle  by  the 
aid  of  which  all  difficulties  may  be  solved.  The  inter- 
preter needs  only  to  discover  this  principle,  and  from  it 
to  deduce  its  consequences  —  consequences  which  are 
derived  logically  from  the  law  itself.  This  traditional 
method  has  its  incontestable  advantages.  It  magnifies 
the  interpreter  by  making  him  the  mouthpiece  of  the  law  ; 
it  satisfies  the  demands  of  our  classical  spirit,  and  it 
seems  to  impart  great  solidity  to  our  legal  doctrine.  But 
over  against  the  advantages,  we  must  take  note  of  the 
difficulties.  We  are  bound  as  with  chains  to  the  birth 
hour  of  the  law.  The  law,  regarded  as  sufficient  to  itself, 
is  isolated  among  the  sciences,  and  loses  all  touch  with 

2  "A  host  of  things  are  necessarily  left  to  be  controlled  by  usage,  to 
be  shaped  by  well  informed  men,  to  be  arbitrated  by  judges."  ("Dis- 
cours Préliminaire  sur  le  Projet  de  Code  Civil." Fenet,  v.  1,  p.  476.) 


114  RECENT   PHASES  [Ch.X 

life.  The  interpreter's  respect  for  texts  is  only  a  vain 
appearance,  for  he  himself  actually  creates  the  principles 
which,  in  order  to  gain  for  them  a  semblance  of  authority, 
he  ascribes  to  the  legislators.  These  so-called  principles, 
which  are  nothing  but  subjective  conceptions,  become 
tyrannical  in  the  end  ;  they  stand  in  the  way  of  knowledge 
and  they  impede  progress.  For  example,  the  principle 
is  laid  down  that  every  right  implies  a  subject  who  is 
of  necessity  a  civil  or  moral  person.  This  precludes  the 
possibility  of  rights  for  one  who  is  not  yet  conceived  when 
the  right  comes  into  being  ;  cases  in  which  the  law  guaran- 
tees the  right  of  an  unborn  person  must  therefore  be 
considered  exceptional  and  not  properly  to  be  multiplied. 
Thus,  life  insurance  in  favor  of  unborn  heirs,  a  benefit 
destined  for  a  moral  being  not  yet  recognized,  becomes 
impossible. 

§  85.  Cény's  Project  Outlined.  After  having  de- 
nounced the  abuses  of  the  traditional  method,  Gény 
studies  at  length  the  theory  of  the  sources  of  the  law,  and 
endeavors  to  establish  a  new  method  of  interpretation. 

First  of  all,  the  duty  of  the  interpreter  is  to  apply 
the  statute.  But  how  shall  he  interpret  it?  As  one 
interprets  any  human  volition  expressed  in  a  written 
instrument.  The  content  of  this  instrument  is  to  be 
determined  according  to  the  formula  in  which  it  is  ex- 
pressed ;  Gény  repudiates  in  general  every  system  which 
inclines  to  interpret  the  law  according  to  the  exigencies 
of  the  issue  to  which  it  is  immediately  applied.  That 
system  which  separates  the  text  from  the  legislator's 
thought,  giving  it  an  independent  existence,  subject  to 
the  law  of  evolution  and  subordinate  toits  social  environ- 
ment, substitutes  the  interpreter's  purpose  for  that  of 
the  law,  and  sacrifices  the  very  essence  of  the  law,  namely 
the  deliberate,  conscious  will  of  the  legislator,  the  mean- 
ing of  which  is  fixed  when  this  will  is  formulated.     The 


§85]  FREE  SCIENTIFIC  RESEARCH  115 

interpreter  therefore  may  not  give  to  the  provisions  of 
the  law  a  broader  scope  than  was  intended  by  those  who 
drew  them  up. 

§  86.  The  Interpreter' s  Privilege.  Concerning  any 
question  remaining  outside  the  previsions  of  the  law, 
one  must  first  inquire  whether  recourse  may  not  be  had 
to  other  sources- — to  custom,  to  tradition,  to  jurispru- 
dential or  doctrinal  authority.  Gény  does  not  ascribe 
an  equal  importance  to  all  of  these  sources.  He  deter- 
mines their  force  and  their  respective  importance,  and 
the  consequent  degree  of  freedom  which  the  interpreter 
may  exercise.  This  freedom  is,  in  fact,  unlimited, 
whenever  the  case  in  point  is  outside  the  expected  scope 
of  the  law.  The  interpreter  must  then  find  the  solution 
for  himself;  he  must  seek  it  freely  and  scientifically; 
freely  because  he  is  not  constrained  by  any  external 
influence,  scientifically  because  such  research  must  not 
be  arbitrary.  "It  is  a  question  of  establishing  by  a 
scientific  process,  a  kind  of  common  law,  general  in  its 
nature  and  subsidiary  in  its  function,  which  supplements 
the  deficiencies  of  the  formal  sources,  and  directs  the 
whole  movement  of  the  juristic  life."  ^  Upon  what 
foundations  must  this  edifice  be  laid?  Upon  the  data 
of  reason  and  of  conscience  ;  upon  the  sciences  auxiliary 
to  the  law;  and  upon  an  observation  of  the  social  life, 
which  reveals  to  us  what  Gény  calls  "the  nature  of 
positive  things."  *  Juridical  organization  purposes  in 
fact  to  realize  in  the  life  of  humanity  an  ideal  of  justice 
and  utility,  "meaning  by  utility  that  which  the  general 
opinion  regards  as  the  greatest  good  of  the  greatest 
number."  ^ 

§  87.  Both  Pure  and  Practical  Reason  are  Requisite. 
Our  ideal  of  justice  is  given  to  us  by  conscience  ;  according 

'Géwy,  "Méthode  d'Interprétation,"  p.  470. 
«  Ibid.,  p.  472. 
6  Ibid.,  p.  471. 


116  RECENT   PHASES  [  Ch.  X 

to  Gény,  it  is  an  intuition  of  reason.  He  stands  in  no 
fear  of  exposing  himself  to  the  reproach  of  a  return  to 
natural  law,  so  discredited  by  the  historical  school.  He 
sees  in  this  discredit  nothing  more  than  an  excess  of 
reaction  against  a  doctrine  which  could  not  be  sustained 
in  the  absolute  form  which  it  had  assumed.^  That 
natural  law  is  universal,  always  identical  with  itself  and 
capable  of  satisfying  with  its  abstract  principles  the  most 
exacting  demands  of  the  social  life,  is  a  contention  which 
cannot  be  successfully  maintained.  Nor  does  Gény 
appear  to  avoid  the  concession  that  this  ideal  is  merely 
belief;  what,  indeed,  is  an  intuition  of  reason,  if  not 
belief?  "If  we  fix  our  attention  less  upon  words  and 
more  upon  things,  must  we  not  say  that  complete  truth, 
the  necessary  object  of  our  researches,  is  attained  some- 
times by  processes  which  lead  to  the  stronger,  more 
irresistible  form  of  conviction  which  we  call  science,  and 
sometimes  by  a  path  less  clear,  but  perhaps  no  less  certain 
in  its  issues,  which  leads  us  to  what  we  commonly  call 
belief?  We  may  admit  that  the  intellect  finds  less  pro- 
found satisfaction  in  belief;  that  pure  reason  is  capable 
of  attaining  to  it  only  by  the  aid  of  feeling;  or,  more 
exactly,  that  it  is  obliged  so  to  modify  its  normal  course 
of  operation  as  to  leave  the  larger  share  to  that  form 
of  its  activity  which  is  called  the  moral  consciousness; 
we  may  recognize  this  fact  without  consenting  that  a 
science  so  completely  devoted  to  the  practical  as  ours  is, 
may  banish  from  its  horizon  all  the  products  of  belief. 
In  short,  practical  reason  must  remain  for  us  the  com- 
plement of  pure  reason."  '  We  find  in  this  idea  of  the 
law,  as  set  forth  by  Gény,  a  mild,  attenuated  form  of 
Kantianism,  in  which  feeling  mingles  with  reason  to 
form  belief. 

«  Ibid.,  p.  477. 
'  Ibid.,  p.  479. 


§88]         FREE  SCIENTIFIC  RESEARCH  117 

§  88.  Subjectivity  Not  an  Essential  Characteristic  of 
the  Principles  of  Justice.  If  the  principles  of  justice  are 
revealed  to  us  by  conscience,  then  it  is  within  ourselves 
that  we  shall  find  them.  Does  it  follow  that  they  have, 
as  the  German  school  would  say,  a  purely  subjective 
character?  Gény  does  not  think  so.  He  sees  in  these 
concepts  "the  representation  of  a  higher  reality  existing 
outside  ourselves."  *  They  are  not,  indeed,  purely 
individual,  different  in  each  one  of  us;  they  have  a 
character  of  universality  which  belongs  to  their  objective 
existence.  We  can  only  concede  that,  in  passing  through 
the  individual  mind,  they  are  impregnated  with  sub- 
jectivity, and  so  seem  to  lose  "their  appearance  of  en- 
tities superior  to  man  and  independent  of  him."  ^ 

§  89.  The  Uses  of  Analogy.  If  the  principles  of  jus- 
tice revealed  by  reason  and  conscience  serve  as  a  founda- 
tion for  free  research,  they  can  furnish  only  guidance 
instead  of  a  precise  solution,  to  the  interpreter  compelled 
to  supplement  the  deficiencies  in  the  formal  sources  of 
the  law.     He  must  come  into  touch  with  reality;    he 

«  Ibid.,  p.  486. 

«  Ibid.,  p.  486.  In  analyzing  the  conception  of  justice,  Gêny  is  led 
to  inquire  into  the  meaning  of  the  sense  of  equity,  and  to  ask  what  rôle 
should  be  assigned  to  this  feeling  in  the  interpretation  of  positive  law. 
Unless  we  are  mistaken,  equity  is  for  Gény  nothing  else  than  the  sense 
of  what  is  just,  sharpened  by  juristic  education.  "It  is  a  kind  of  instinct 
which,  without  appealing  to  the  reasoning  mind,  goes  of  its  own  accord 
straight  to  the  best  solution,  the  one  most  conformable  to  the  aim  of 
all  juridical  organization"  (p.  488).  It  is  neither  possible  nor  legitimate 
to  deny  that  equity  holds  a  position  of  authority.  It  is  a  fact  of  ex- 
perience that  in  a  large  number  of  cases  it  leads  us  to  the  right  solution 
more  surely  and  more  quickly  than  reasoning  could  do.  Certain  theories, 
that  of  the  conflict  of  old  and  new  laws,  for  example,  can  be  made  clear 
only  in  the  light  of  equity;  all  of  the  distinctions  which  are  based  on  a 
rational  principle  cannot  furnish  satisfactory  solutions.  But  the  in- 
terpreter, to  avoid  all  danger  of  the  arbitrary,  should  as  far  as  possible 
analyze  the  situation  in  itself,  putting  to  one  side  individual  circum- 
stances peculiar  to  the  case  (personal  qualities,  the  effects  of  the  decision), 
unless  the  law  should  leave  the  case  to  equity  as  already  explained  (e.g. 
arts.  1854,  1780,  French  Civil  Code,  modified  by  the  Law  of  December  27, 
1890). 


118  RECENT   PHASES  [  Ch.  X 

must  bring  his  investigation  to  bear  on  what  Gény  calls 
the  nature  of  positive  things.  This  expression,  which  is 
not  clearly  defined,  seems  to  embrace  the  sum  total  of 
social  relations,  and  of  the  aims  which  these  relations 
imply.  The  positive  law  which  regulates  these  relations 
itself  constitutes  a  reality;  in  other  words,  the  inter- 
preter should  be  able  to  find  in  the  solutions  of  the  texts 
elements  of  solution  applicable  to  cases  which  the  law 
has  not  foreseen.  This  extension  of  legal  interpretation 
is  effected  by  the  aid  of  the  familiar  process  of  analogy. 
This  process  consists  in  deducing  a  solution  from  the 
similitude  established  between  two  situations.  A  given 
situation  is  comparable  to  another  which  is  regulated  by 
the  law;  it  will  be  admitted  that  the  former  will  be 
regulated  in  the  same  way.  Analogy  is  an  extremely 
fruitful  process.'"  It  sometimes  extends  the  application 
of  a  decision  from  one  case  to  another:  this  is  what  the 
Germans  call  analogy  of  enactment  (Gesetzanalogie)  ; 
it  sometimes  deduces  from  scattered  provisions  a  general 
rule  which  furnishes  an  entire  series  of  solutions:  this 
is  what  is  called  analogy  of  rights  (Rechtsanalogie).^^ 

10  It  is  proper  to  observe  that  Gény,  who  assigns  to  analogy  an  im- 
portant place  in  free  research,  declines  to  consider  it  as  a  process  of  legal 
interpretation.  Nor  is  the  question  merely  one  of  words.  Analogy, 
considered  as  a  process  of  juridical  elaboration,  has  no  such  purpose  as 
to  attribute  to  the  legislator  an  intention  which  he  may  very  well  never 
have  had.  In  generalizing  from  solutions  contained  in  the  texts,  the 
interpreter  is  inspired  not  by  the  supposed  thought  of  the  legislator, 
but  by  moral,  political,  economic,  and  social  considerations  which 
unfold  these  solutions.  Moreover,  analogy,  regarded  as  a  process  of 
legal  interpretation,  for  the  very  reason  that  it  assumes  to  take  into 
account  the  will  of  the  legislator,  has  an  undue  influence  on  the  mind  of 
the  interpreter;  while  in  independent  research  there  is  nothing  impera- 
tive. 

n  Is  not  this  a  roundabout  return  to  the  use  of  the  same  juristic  con- 
struction the  abuse  of  which  Gé«y  has  denounced?  He  denies  that  he 
himself  has  incurred  this  reproach,  still  maintaining  that  analogy  as  he 
conceives  it  is  the  work  of  the  interpreter;  it  rests  upon  interpretation; 
in  contrast  to  juristic  construction,  it  docs  not  attribute  a  hypothetical 
intention  to  the  legislator  ("Méthode  d'Interprétation,"  p.  502). 


§90]  FREE  SCIENTIFIC  RESEARCH  119 

§  90.  Gény's  Objective  Method.  From  analogy  Gény 
passes  by  an  almost  insensible  transition  to  truly  objec- 
tive methods  of  interpretation.^-  Indeed,  the  analogy 
of  rights,  seeking  as  it  does  to  disengage  the  spirit  of 
legal  solutions,  derives  but  slight  support  from  positive 
private  law  ;  only  another  step  is  necessary  to  give  to  the 
whole  legal  system  the  appearance  of  an  element  in  our 
civilization  of  a  kind  to  suggest  juridical  solutions. 
Properly  speaking,  this  is  no  longer  analogy;  it  is  a  vast 
synthesis  of  legal  solutions  which  has  been  called  the 
philosophy  of  positive  law.^^  It  is  not  only  the  ensemble 
of  an  existing  body  of  law  which  must  be  consulted  ;  we 
must  seek  suggestions  and  inspiration  in  all  the  social 
and  even  the  technical  sciences.  Law  thus  allies  itself 
with  all  the  other  sciences  and  ceases  to  be  so  inferior 
an  art  as  that  of  discussing  and  expounding  texts. 
Saleilles  ^"^  echoed  Gény's  thought  when  he  said,  "The 
law  presupposes  general  science."  Thus  the  problem 
of  legislation  regarding  pit-coal  is  the  working  up  of  the 
data  of  political  economy  and  of  engineering  science. 
To  find  the  solution  which  will  best  reconcile  the  ends 
of  justice  and  those  of  utility,  precedents  must  be  taken 
into  account  and  judgments  must  be  formed  concerning 
the  results  of  experiments  made  for  mines  and  for  rail- 
roads. It  may  be  objected,  indeed,  that  the  question 
is  one  of  legislation  only,  but  with  freedom  of  scientific 
research,  the  rôles  of  interpreter  and  legislator  con- 
verge, since  when  the  law  is  silent,  the  interpreter  must 

12  "Méthode  d'Interprétation,"  p.  507. 

13  This  is  the  method  of  argument  when,  for  example,  to  settle  a  ques- 
tion as  to  the  validity  of  alienations  agreed  to  by  the  heir  apparent, 
inquiry  is  made  whether,  in  the  general  body  of  our  law,  preservation 
of  credit  is  not  superior  to  conservation  of  the  right  of  property.  (Cf. 
Cass.  Civ.,  Jan.  26,  1897,  Pand.  P.  1901.1.209,  and  RCL,  "Examen 
de  Jurisprudence,"   1902,  p.   16.) 

"  "Les  Méthodes  d'Enseignement  du  Droit  et  l'Éducation  Intellect- 
uelle de  la  Jeunesse,"  p.  7. 


120  RECENT  PHASES  [Cn.X 

speak,  inspired  by  the  considerations  which  would  pre- 
scribe to  the  legislator  the  "lex  ferenda." 

§  91.  Limitations  upon  the  Interpreter.  Nevertheless, 
we  must  not  conclude  that  the  interpreter  is  invested 
with  unlimited  power.  He  may  intervene  only  to  sup- 
plement the  formal  authorities,  and  even  in  that  field 
there  are  limits  to  his  discretion  in  establishing  rules  of 
law.  He  may  neither  restrict  the  scope  of  the  general 
principles  of  our  juridical  organization,  explicitly  or 
implicitly  sanctioned,  ^^  nor  may  he  lay  down  detailed 
regulations  governing  the  exercise  of  given  rights,  by 
introducing  delays,  formalities,  or  rules  of  publicity.^® 

§  92.  Positive  Principles  of  Free  Research.  But  it 
is  not  enough  merely  to  indicate  what  free  research  may 
not  do.  To  make  evident  the  functioning  of  its  method 
and  to  permit  a  due  appreciation  of  its  results,  it  is 
necessary  to  show  what  it  may  do  by  applying  it  to  a 
certain  number  of  juridical  problems.  Gény  postpones 
some  attempts  at  adaptation  to  a  later  monograph. 
In  his  book  he  confines  himself  to  a  few  general  obser- 
vations. Free  research,  like  the  art  of  legislation,  uses 
and  combines  three  principles:  the  principle  of  autonomy 
of  the  will,  that  of  the  public  order,  and  that  of  an  equih- 

»6  It  is  for  this  reason,  observes  Gény,  that  the  Court  of  Cassation  has 
refused  to  approve  the  practice  of  judicial  sequestrations  and  liquid- 
ations followed  in  certain  tribunals,  and  intended  to  make  up  for  the 
lack  of  organization  in  insolvency  proceedings.  It  is  certainly  a  useful 
means  of  settlement.  It  dispossesses  the  debtor  at  a  time  when  his 
management  may  become  dangerous;  it  substitutes  a  joint  process  of 
recovery  for  individual  suits;  and  it  takes  care  that  the  creditors  shall 
be  known,  and  paid  in  equal  ratio.  Nevertheless  the  Court  of  Cas- 
sation has  not  believed  itself  authorized  to  permit  this  procedure,  which 
paralyzes  the  right  of  the  owner  to  dispose  freely  of  his  property,  and 
interposes  obstacles  to  the  exercise  of  the  creditor's  individual  right 
of  action.     (Cass.  Nov.  13,  1889.     S.  1890.1.8.  Cf.  RCL  1891,  p.  79.) 

i^Gény  admits,  however,  that  the  courts  may  aid  in  establishing  as 
a  customary  rule  a  usage  of  permitting  certain  delays,  and  they  have  done 
this  in  respect  to  the  transfer  of  business  assets.  They  may  even  go 
so  far  as  to  create  a  rule,  provided  this  is  very  simple.  (See  Ghiy,  RCL 
1899,  p.  461.) 


§  92  ]  FREE  SCIENTIFIC  RESEARCH  121 

brium  of  interests.  The  first  principle,  the  autonomy 
of  the  will,  appears  to  Gény  more  fertile  than  is  commonly 
supposed.  Free  research  can,  in  many  cases,  draw  inspir- 
ation from  it,  as  for  example  in  providing  for  a  transfer 
of  obligations  concerning  which  the  statutory  provision 
is  silent,  but  which  it  does  not  forbid;  in  creating  sub- 
stantial rights  sui  generis  on  the  sole  condition  of  respect- 
ing the  principles  of  our  social  organization^^;  or  in 
settling  the  question  as  to  the  conditions  under  which 
a  voluntary  act  may  give  rise  to  an  obligation. ^^  The 
principle  of  autonomy  of  the  will  is  not  only  limited  by 
that  of  the  public  welfare;  it  is  also  subordinate  to  the 
principle  of  an  equilibrium  of  interests,  which  Gény 
formulates  as  follows :^^  "Seek  to  solve  juridical  ques- 
tions, which  all  rest  back  upon  a  conflict  of  interests, 
by  an  exact  appreciation  and  a  judicious  comparison 
of  the  interests  involved,  with  a  view  to  an  equilibration 
conformable  to  social  ends."  This  principle  has  been 
the  guide  of  the  law-maker  in  very  many  cases,^''  and 
in  the  absence  of  formal  prescription  it  should  guide 
the  interpreter  also.  By  applying  it  judiciously  we  may 
decide,  in  respect  to  disputed  hypotheses,  as  to  the 
party  upon  whom  the  burden  of  proof  should  rest,  may 
give  precision  to  the  theory  of  the  misuse  of  individual 
rights  by  comparing  the  importance  of  a  right  and  that 

"  See,  upon  the  nature  of  the  rights  resulting  from  certain  exemption 
clauses  stipulated  by  concessionary  mining  companies  with  respect 
to  damages  which  their  operations  might  cause  to  lands  sold  by  them, 
Cass-,  Dec.  12,  1899.  S.,  1901.1.497,  note  by  Tissier;  Pand.  P.  1900. 
1.241,  note  by  Gény;  Gény,  RB,  1897,  v.  vii,  p.  151. 

"For  an  answer  to  this  question,  Gény  thinks  that  the  important: 
thing  is  not  so  much  to  learn  under  what  conditions  a  meeting  of  wills 
may  arise,  as  under  what  general  circumstances  voluntary  agreements 
may  acquire  legal  force  (p.  532).  This  consideration  does  not  lead  him 
to  validate  indiscriminately  all  unilateral  promises,  but  only  those  which 
answer  to  some  desirable  social  end. 

""Méthode  d'Interprétation,"  p.  542. 

20  See  those  cited  hy  Gény,  loc.  cit.,  p.  450. 


122  RECENT   PHASES  [Ch.X 

of  the  interests  with  which  it  conflicts.  21  Gény  believes 
also  that  the  great  difficulties  to  which  the  extension  of 
civil  responsibility  gives  rise  might  be  solved  in  the  same 
way.  In  the  silence  of  the  statute,  which  recognizes 
only  responsibility  for  fault,  it  is  for  the  interpreter  to 
regulate  as  best  he  may,  according  to  the  demands  of 
justice  and  the  moral  sentiment,  everything  which  may 
properly  be  regarded  as  a  matter  of  risk.  22  From  this 
long  but  nevertheless  very  inadequate  summary  of  the 
ideas  of  Gény,  we  must  seek  to  disengage  a  conclusion. 

§  93.  Gény' s  Position  Considered.  His  book  is  above 
all  frank,  and  denounces  very  forcibly  the  errors  and 
excesses  of  the  traditional  method,  the  element  of  fiction 
in  its  composition.  No  one  can  believe  in  this  day  that 
the  written  law  is  all-sufficing,  no  one  will  overlook  the 
necessity  of  guarding  against  the  logical  element  which 
misleads  the  jurist,  depriving  him  of  his  sense  of  reality, 
of  his  feeling  for  the  just  and  the  unjust — against  that 
abuse  of  technical  construction  which  becomes  in  the 
end  a  kind  of  "idolum  fori,"  upon  which  finally  the  legis- 
lator himself  dares  not  lay  his  hand. 

Without  attempting  to  disguise  the  evil  consequences 
of  these  interpretative  processes,  we  should  nevertheless 
observe  that  ^  these  inconveniences  have  been  tem- 
pered and  attenuated  by  the  moderation  and  the  spirit 
of  equity  with  which  they  have  commonly  been  applied. 
On  the  other  hand,  it  must  be  confessed  that  the  dangers 
of  liberal  adaptation,  of  free  research,  are  not  less  for- 
midable or  less  difficult  to  avoid.  That  the  law  should 
be  applied  with  liberality  and  with  humanity,  that  its 
text  should  be  adapted  as  far  as  possible  to  the  exigencies 

«I  Gény,  p.  544. 

«  Ibid.,  p.  547. 

s»  Tissier,  Analysis  oîGény's  book,  RB,  separate  edition,  p.  18.  Chausse 
and  Charmant,  "Les  Interprètes  du  Code  Civil":  "Livre  du  Centenaire," 
V.  i,  p.  135. 


§93]  FREE  SCIENTIFIC  RESEARCH  123 

of  modern  life,  that  in  determining  the  bearing  of  a 
text  the  judge  should  take  into  account  the  modifications 
demanded  by  later  laws,  the  changes  in  the  general  body 
of  legislation,  may  well  be  admitted.  But  it  must 
nevertheless  not  be  forgotten  that  the  law  is  above  all 
an  expression  of  declared  will.  What  security  could 
there  be  in  the  legal  system  of  a  country  whose  judges, 
under  pretext  of  recognizing  insensible  changes  in  the 
law,  "should  claim  the  right  of  attributing  to  such 
and  such  an  article  the  meaning  which  it  would  have  if  it 
had  been  drawn  up  by  them?"  ^* 

Free  research  involves  undoubtedly  less  of  fiction,  less 
of  artifice;  but  on  the  other  hand  it  is  open  to  the  re- 
proach ^s  that  it  does  not  integrate  juridical  decisions 
with  the  whole  organized  body  of  law,  weaving  them  into 
the  prearranged  woof  of  the  legal  tissue.  The  decision 
of  a  judge  who  acts  as  a  law-maker  will  always  appear 
individual,  arbitrary,  and  partial;  it  can  never  have  the 
weight  of  law. 

If  the  traditional  method  exaggerates  the  rôle  of  logic, 
free  research  does  not  allow  it  its  due  share.  Logic 
has  always  been  in  fact  an  agent  of  integration,  a  means 
of  harmonizing,  of  unifying  all  the  parts  of  the  juridical 
organism.  As  Meynial  says,  ^s  in  his  study  of  "Le  Rôle 
de  la  Logique  dans  la  Formation  Scientifique  du  Droit," 

"*  Alfred  Martin,  "Observations  sur  les  Pouvoirs  Attribués  au  Juge 
par  le  Code  Civil  Suisse,"  p.  16.     Cf.  Tissier,  loc.  cit.,  p.  15. 

"  "If  I  were  to  discuss  the  subject,  I  should  perhaps  have  to  inquire 
whether  in  the  present  stage  of  our  civilization,  a  factor  in  the  form  of  a 
doctrine  or  custom  could  give  to  a  right  originally  subjective  the  objective 
form  necessary'  to  its  inclusion  within  the  framework  of  our  juridical 
structure.  Even  from  the  standpoint  of  the  laws  of  sociology  it  might 
appeal  as  a  characteristic  and  necessary  part  of  a  given  law  that  it 
should  be  connected  with  a  systematic  codification  which,  whether  de- 
rived from  interpretation,  from  doctrine,  or  from  judicial  decisions, 
should  give  it  the  stamp  necessary  to  the  public  security."  {Saleilles, 
preface  to  Gêny' s  book,  pp.  xi  and  xii.) 

«  Extract  from  RMM,  p.  24, 


124  RECENT   PHASES  [Ch.X 

"The  human  mind  is  so  constructed  that  it  submits  only 
to  that  which  is  orderly  and  without  inherent  contra- 
dictions. The  law  cannot  evade  this  condition;  it 
satisfies  us  only  when  it  conforms  to  the  general  demand 
for  order  and  harmony  made  by  us  all.  To  prevail  with 
us  it  must  be  a  product  of  reason,  invested  with  the  neces- 
sary character  of  logical  truth  ;  and  all  of  its  parts  must 
appear  to  be  bound  together  by  relations  of  cause  and 
effect.  Without  this,  we  no  longer  recognize  it  as  super- 
ior to  ourselves;  and  we  are  disposed  to  deny  its  right 
of  command." 


§94]  DUGUIT'S  THEORY  125 

CHAPTER  XI 
DUGUIT'S  THEORY  OF  OBJECTIVE  LAW 

OUTLINE  OF  THE  DOCTRINE  —  DUGUIT  AND  THE 
SOLIDARISTS— RELATIONS  TO  PREDECESSORS  AND  CON- 
TEMPORARIES —  SOLIDARISM  FURNISHES  BUT  A  WEAK 
FOUNDATION  —  OBJECTIVE  AND  SUBJECTIVE  LAW  — 
DUGUIT  AN  UNCONSCIOUS  IDEALIST. 

§  94.  Outline  of  the  Doctrine.  Among  the  doctrines 
which  recall  us  to  legal  idealism,  how  can  we  include  the 
theories  of  Duguit?  Unquestionably  they  are  above  all 
else  realistic,  based  upon  facts,  disdainful  of  abstractions, 
inspired  by  an  evident  desire,  according  to  Duguit  him- 
self," ^  "to  break  with  the  concepts  of  pure  metaphysics, 
which,  as  such,  belong  to  the  realm  of  the  unknowable, 
and  may  serve  as  the  theme  for  a  religious  system  or  for 
a  poetical  work,  but  are  entirely  foreign  to  positive 
knowledge."  He  takes  pains  to  state  in  the  first  pages 
of  his  book  on  "Le  Droit  Objectif  et  l'État"  ^  that  the 
right  of  the  individual  is  a  "pure  hypothesis,  a  pure 
mataphysical  affirmation,  not  a  reality."  As  a  kind  of 
fiction,  a  contract  is  supposed  to  exist  between  the  in- 
dividual and  the  State;  in  this  contract,  of  which,  to  be 
sure,  there  are  no  examples  in  history,  the  individual 
makes  reservations  in  his  own  behalf;  there  is  a  whole 
side  of  his  personality  which,  by  remaining  protected, 
becomes  inaccessible.  The  exigencies  of  this  theory 
lead  one  to  ascribe  to  the  collectivity  a  borrowed  per- 

»  "Le  Droit  Constitutionnel  et  la  Sociologie,"  RE  1889,  p.  487. 
î  P.  12.      [P.  248  post.] 


126  RECENT   PHASES  [  Ch.  XI 

sonality,  to  regard  the  State,  in  opposition  to  the  indivi- 
dual, as  also  a  subject  of  the  law.  It  has  been  possible  at 
certain  epochs  for  these  doctrines  to  be  utilized.  They 
have  furnished  a  means  of  limiting  the  absolute  power 
of  the  State,  of  checking  arbitrariness  in  government  and 
tribunals,  and  of  greatly  furthering  the  progress  of  public 
law.  But  like  all  artificial  principles,  they  lead  to  un- 
sound conclusions.  They  falsely  oppose  the  individual 
to  the  State,  so  that  whatever  is  lost  by  the  one  appears 
to  have  been  gained  by  the  other.  They  assign  fixed, 
invariable  limits  to  the  State,  whereas  in  reality  these 
limits  vary  with  the  times,  with  the  social  environment, 
with  circumstances,  and  with  the  character  of  the  citi- 
zens. They  determine  these  limits  negatively  rather 
than  by  conferring  positive  attributes  upon  the  State. 
They  are  in  contradiction  to  the  law  of  evolution;  the 
claim  that  the  rights  of  man  can  be  fixed  by  immutable, 
universal  rules  is  incapable  of  realization. 

§  95.  Duguit  and  the  Solidarists.  Duguit  thus  avoids 
discussion  of  subjective  law,  the  law  which  has  its  source 
in  the  individual  himself.  For  Duguit,  the  law  is  above 
all  an  objective  principle  which  comes  from  without  in- 
stead of  from  within.  Faithful  to  his  realistic  method, 
he  professes  to  base  this  principle  upon  a  fact,  the  fact 
of  solidarity.  This  fact  is  not  a  rule  of  conduct,  but  a 
spring  of  action.  Every  man  conceives  of  himself  as 
in  relations  of  solidarity  with  his  fellows,  which  means  that 
he  is  useful  to  others  and  that  they  are  indispensable 
to  him.  Man  is  thus  individual  and  social  at  the  same 
time,  and  the  more  his  individuality  develops,  the  more 
closely  he  feels  bound  to  other  men,  and  consequently 
the  more  social.  Individualization  and  socialization, 
far  from  opposing  one  another,  make  for  mutual  service. 

What  distinguishes  Duguit  from  the  other  adherents 
of  Solidarism  is  that  he  does  not  pretend  to  give  a  moral 


§95]  DUGUIT'S  THEORY  127 

value  to  the  fact  of  solidarity.     There  is  nothing  impera- 
tive in  it;    it  issues  no  commands,  it  impresses   by  its 
inherent  quahties,  by  its  intelligibihty  alone.     "We  do 
not  say  that  man  ought  to  cooperate  in  social  solidarity 
because  that  cooperation  is  good  in  itself,  but  that  man 
ought  to  cooperate  in  social  solidarity  because  he  is  a 
man,  and  because  as  such  he  cannot  live  except  by 
solidarity.     We  do  not  say  that  the  act  of  cooperation 
in  solidarity  is  good  ;  we  say,  the  act  of  cooperation  has 
a  social  value  and  social  consequences."  ^     Conformity 
to  solidarity  is  not  a  rule  of  ethics;   it  is  a  rule  of  law. 
All   individuals  —  and    the   term    "society"   is  only   a 
designation  of  the  mass  of  individuals  —  have  and  can 
have  but  one  object,  to  live  in  conformity  with  solidarity. 
The  consequence  of  man's  inability  to  live  except  by 
solidarity  is  that  every  act  which  tends  to  realize  this 
solidarity  compels  the  respect  of  the  social  body.^     In- 
versely, every  man  should  refrain  from  any  act  inimical 
to  social  solidarity.     The  principle  is  constant,  but  as 
the  forms  of  solidarity  are  susceptible  of  infinite  variation, 
the  rule  changes  to  correspond;   the  jurist  adapts  it  to 
the  conditions  of  the  environment  and  of  the  period. 
Unlike  natural  law,  it  lacks  the  disadvantage  of  being 
absolute  and  immutable. 

§  96.  Relations  to  Predecessors  and  Contemporaries. 
While  denying  the  existence  of  these  subjective  natural 
rights,  rights  based  on  pure  belief  or  on  a  respect  for  the 
human  person  — and  this  is  from  our  standpoint  a  char- 
acteristic trait — Duguit  yet  guards  against  the  mis- 
leading conclusions  of  the  German  realistic  doctrine. 
He  is  opposed  to  the  absolutist  doctrine  of  the  unlimited 
power  of  the  State,  or  of  its  self-limitation,  which  is, 
as  he  says,  only  a  form  of  omnipotence  in  disguise. 

»  "Droit  Constitutionnel,"  p.  16. 
«  Ibid.,  p.  84. 


128  RECENT   PHASES  [  Ch.  XI 

The  acts  of  rulers  are  not  legitimate,  in  his  eyes,  unless 
they  conform  to  social  solidarity.  Duguit  puts  great 
emphasis  on  the  right  of  minorities;  he  is  an  advocate 
of  proportional  representation;  he  looks  upon  the  re- 
ferendum, the  dissolution  of  parliaments,  as  excellent 
institutions,  because  they  maintain  solidarity  between 
the  governing  and  the  governed.  He  censures  in  the 
name  of  his  own  principles  most  of  the  abuses  which  we 
condemn  out  of  respect  for  the  rights  of  man  — the  re- 
moval of  any  class  of  persons  outside  the  pale  of  the  law,  as 
for  example,  the  regulation  of  prostitution  by  the  police. 
So,  although  Duguit  denies,  as  we  have  already  pointed 
out,  every  a  priori,  every  moral  belief,  every  metaphysical 
principle,  he  leads  us  to  the  very  conclusions  which 
follow  naturally  from  these  principles  and  these  beliefs. 
"M.  Duguit  would  have  governments  be  of  that  superior 
form  of  justice  which  is  identical  with  solidarity."  ^ 

Deslandres  ^  likewise  observes:  "Certainly  M.  Duguit 
is  inspired  with  ideas  which  are  exactly  opposed  to  those 
of  a  Rousseau,  or  of  an  individualist  of  the  Constituent 
Assembly  of  '89,  or  of  a  Liberal  individualist  such  as 
Benjamin  Constant;  it  is  nevertheless  true  that  his 
position  is  the  same  as  theirs  on  the  question  with  which 
we  are  now  occupied,  the  foundation  of  the  law.  There 
is,  spanning  the  centuries,  a  considerable  group  of  minds 
which  have  believed  in  one  justice,  in  one  ideal  social  order 
flowing  from  the  nature  of  things,  from  reason,  from 
the  natural  rights  of  man,  and  from  the  social  fact  which 
inevitably  inspires  positive  law  and  gives  it  that  legiti- 
macy which,  indeed,  exists  only  to  whatever  extent 
positive  law  depends  upon  that  fact." 

§  97.  Solidarisni  Furnishes  but  a  Weak  Foundation. 
But  are  Duguit's  conclusions  derived  logically  from  his 

'  Barthélémy,  RDP  190S,  p.  162. 

•  "Étude  sur  le  Fondement  de  la  Loi,"  RDP  1908,  p.  10. 


§97]  DUGUIT'S  THEORY  129 

principles?  We  do  not  hesitate  to  believe  that  Duguit 
lends  to  his  principles  a  virtue  which  they  do  not  possess. 
Apropos  of  Solidarism,  we  have  already  established  the 
impossibility  of  passing  from  fact  to  duty,  from  "the 
enunciative  to  the  normative."  In  this  respect,  the  illu- 
sion of  the  earliest  adherents  of  Solidarism  was  short- 
lived. All  of  them,  or  very  nearly  all,  acknowledged  that 
the  fact  of  solidarity  was  incapable  of  being  transformed 
logically  into  an  obligatory  rule.  Man  reckons  with  facts 
according  to  the  measure  of  his  powers;  he  encounters 
them  in  his  experience,  he  perceives  the  advantage  or  the 
harm  which  they  may  bring  to  him,  he  tries  to  make  sure 
of  some  facts  and  to  evade  others,  and  is  more  or  less 
successful  in  his  effort.  But  the  ability  which  he  dis- 
plays in  confronting  natural  facts,  his  utilization  of  the 
forces  of  nature,  his  precautions  against  fortuitous 
events,  these  are  only  a  form  of  Utilitarianism.  If  it 
be  true,  as  Duguit  believes  according  to  his  statement, 
that  solidarity  has  no  intrinsic  moral  worth,  that  it  is 
neither  good  nor  bad,  then  every  man  can  understand 
it  and  utilize  it  in  whatever  way  will  serve  his  own 
interest.  The  man  who  is  acute  enough  to  perceive 
the  bonds  which  unite  him  to  his  fellow  men  may  say 
to  himself:  "I  am  dependent  on  others,  others  are 
dependent  on  me;  my  interest  is  to  do  the  least  possible, 
and  to  gain  the  most,  to  shift  my  burden  to  the  shoulders 
of  others,  and  to  take  from  them  as  much  as  I  can." 
That  will  be  his  fashion  of  utilizing  the  principle  of  soli- 
darity. Obviously  we  must  also  admit  that,  in  order 
to  secure  satisfactory  results  from  this  principle,  we 
must  understand  solidarity  in  one  certain  way,  must 
make  a  choice,  eliminating  some  forms  and  retaining 
others.  When  a  tribe  of  negroes  attacks  a  neighboring 
tribe,  to  reduce  it  to  slavery,  its  victory  may  be  con- 
sidered  the  expression  of  one  phase  of  solidarity.     Of 


130  RECENT   PHASES  [Ch.  XI 

two  groups  that  are  numerically  equal,  the  stronger,  the 
one  capable  of  enslaving  the  other,  is  the  one  which 
has  the  most  highly  developed  sense  of  solidarity.  And 
solidarity  itself  is  not  the  only  natural  fact  ;  the  struggle 
for  existence,  inequality  of  strength  and  skill,  are  also 
natural  facts.  By  the  same  token,  why  may  they  not 
suggest  some  rules  of  conduct? 

§  98.  Objective  and  Subjective  Law.  What  is  ap- 
parently another  illusion  of  Duguit's  is  the  importance 
which  he  attaches  to  his  conception  of  objective  law, 
and  his  indifference  to  subjective  law.  For  him,  law 
is  first  of  all  objective,  because  its  source  is  not  in  the 
individual  himself,  but  in  the  external  fact  of  social 
solidarity."  '  "There  can  arise  from  that  principle 
no  subjective  right  nor  subjective  obligation,  but  only 
a  certain  power,  that  of  willing  a  certain  thing,  with 
certain  results  —  and  to  speak  exactly,  we  cannot  char- 
acterize that  power  of  willing  as  a  subjective  right.  Let 
us  call  the  power  objective,  determining  exactly  what  we 
wish  to  express  by  that  term."  ^ 

In  his  "Traité  de  Droit  Constitutionnel,"  Duguit 
agrees  to  consider  as  subjective  right  that  power  which 
the  individual  has  of  effectively  willing  a  result  con- 
formable to  the  rule  of  law.  "Since  objective  law," 
he  says,  "is  founded  on  social  solidarity,  subjective  law 
is  derived  from  it,  and  logically  so.  Indeed,  since  every 
individual  is  obliged,  according  to  the  principle  of  ob- 
jective law,  to  cooperate  in  social  solidarity,  it  neces- 
sarily follows  that  he  has  the  right  to  perform  any  such 
act  of  cooperation,  and  to  prevent  any  one  whomsoever 
from  interfering  with  the  fulfillment  of  the  social  rôle 
which  is  incumbent  upon  him."  * 

7  "Droit  Constitutionnel,"  p.  16. 

8  "L'État,"  V.  i,  p.  144. 

•  "Droit  Constitutionnel,"  p.  16. 


§  98 1  DUGUIT'S  THEORY  131 

Let  us  not  pause  over  what  is  obscure  and  equivocal 
in  this  terminology;  but  let  us  bear  in  mind  this  idea, 
that  the  law  is  first  of  all  an  objective  rule,  a  rule  to  which 
social  respect  is  considered  to  be  given  at  any  moment  as 
a  guaranty  that  the  common  interest  will  be  promoted  ; 
violation  of  it  arouses  a  collective  reaction  against  the 
individual  who  is  guilty  of  the  violation. ^^  We  prefer 
to  believe  with  Gaston  Richard  that  subjective  law  is 
an  idea  of  considerable  significance,  one  that  has  a  very 
real  sociological  meaning.  "If  it  is  not  the  basis  and  the 
condition  on  which  objective  law  rests,  it  is  at  least  its 
reason  for  existence.  Law  is  objective  only  in  so  far 
as  it  is  obeyed."  "  It  is  not  social  constraint  which  gives 
to  the  law  its  seal  of  legitimacy  and  makes  certain  that 
it  will  be  respected;  it  is  the  inner  consciousness  of  the 
agent  who  appeals  to  the  law  or  obeys  it.  This  inner 
consciousness,  this  idea  of  law,  is  essentially  subjective. 
What  has  led  Duguit  to  consider  the  legal  rule  as  ob- 
jective is  the  desire  to  do  away  with  the  old  notion  of 
individual  right,  which  to  him  seems  hypothetical  and 
based  on  an  a  priori  principle.  But  this  notion  was 
more  essential  than  he  supposed,  since  after  discarding 
it  he  has  taken  it  up  again  under  fresh  guise  and  name. 
"Man  living  in  society  has  rights;  but  these  rights  are 
not  prerogatives  to  which  he  is  entitled  as  a  man;  they 
are  powers  which  are  his  because  as  a  social  being  he 
has  a  social  duty  to  perform  and  must  have  the  right  to 
perform  it."  ^^  Is  it  not  possible  that  beneath  some 
surface  differences  it  is  really  the  old  doctrine?  To 
Duguit,    as    Barthélémy    says,^^  solidarity    is    only    a 

»»Ibid.,  p.  1. 

»  G.  Richard,  RP  1909,  p.  317. 

"  "Droit  Constitutionnel,"  p.  16. 

"  RDP  1908,  p.  159.  Gény  made  the  same  point.  "In  reality,  this 
objective  law  is  enough  like  the  old  natural  law  to  be  mistaken  for  it, 
like  that  universal,  immutable  law,  the  source  of  all  positive  laws,  which 


132  RECENT   PHASES  [  Ch.  XI 

scientific  conception  of  justice;  in  the  discussion  of  his 
theories  let  the  word  "soHdarity"  be  replaced  by  justice, 
and  the  general  sense  will  not  be  changed. 

§  99.  Duguit  an  Unconscious  Idealist.  This  is  an 
interesting  form  of  that  unconscious  idealism  of  which  we 
have  mentioned  other  examples.  Duguit  is  a  pseudo- 
Positivist;  if  he  censures  arbitrariness,  the  tyranny  of 
the  violent,  the  oppression  of  the  weak,  the  fact  is  due, 
in  his  case,  to  a  faith  as  yet  unconscious  of  itself,  and 
destined  perhaps  to  reveal  its  presence  in  the  future.  ^^ 

was  spoken  of  in  the  plan  of  the  civil  code  of  the  year  VIII.  Neverthe- 
less, I  have  no  doubt  that  M.  Duguit  would  cry  out  and  protest  with  all 
his  might  against  such  a  comparison"  (RCL  1901,  p.  508).  Cf.  Hanriou 
and  A.  Mestre,  "Analyse  du  Livre  de  M.  Duguit  sur  l'Etat,"  RDP 
1902,  p.  358:  "Here  are  the  dogmas  of  scientific  Positivism  and  here 
are  their  consequences;  they  constitute  the  state  of  mind  of  a  whole 
generation  which  has  allowed  itself  to  be  duped  by  Spencer  and  Haeckel. 
Let  us  add  a  certain  natural  optimism,  a  generous  sentimentalism,  and 
we  shall  have  reconstituted  the  obvious  apriorism  by  which  M.  Duguit 
has  unconsciously  been  guided." 

14  "With  the  same  genuine  and  disinterested  sincerity  which  caused 
him  to  abandon  the  organismic  doctrine  and  the  identification  of  social 
phenomena  with  physical  or  biological  phenomena,  he  will  some  day  bt 
heard  to  admit  that  in  the  order  of  the  social  sciences  metaphysics  has 
its  necessary  place  alongside  the  observation  of  facts,  that  duty  cannot 
be  derived  from  knowledge  alone,  and  that  law  finds  no  truly  objective 
basis  except  in  the  depths  of  moral  consciousness."  (Gény,  RCL  1901, 
p.  610.) 


§  100  ]      LAW  vs.  PRIVATE  CONSCIENCE  133 


CHAPTER  XII 

CONFLICTS    BETWEEN    LAW    AND     THE     IN- 
DIVIDUAL CONSCIENCE 

SOURCES  OF  THE  CONFLICT  — THE  CONFLICT  HISTOR- 
ICALLY CONSIDERED:  (1)  ITS  ABSENCE  FROM  THE 
ANCIENT  WORLD;  (2)  ITS  RISE  WITH  CHRISTIANITY;  (3) 
THE  "PACTUM  SUBJECTIONIS"  AND  THE  RIGHT  OF  RE- 
VOLT; (4)  THE  ATTITUDE  OF  THE  CHURCH;  (5)  TYRANNI- 
CIDE; (6)  THE  RIGHT  OF  RESISTANCE  IN  THE  FRENCH 
CONSTITUTION;  (7)  CONSERVATIVE  INTERPRETATIONS  IN 
OUR  COURTS— THE  PROBLEM  CONSIDERED  IN  ITSELF: 
(1)  AT  FIRST  IT  SEEMS  INSOLUBLE;  (2)  THE  LOGIC  OF 
LIFE  A  HARMONIZING  FACTOR;  (3)  THE  DUTY  TO  PRO- 
MOTE THE  INTERPENETRATION  OF  TWO  WORLDS  —  CON- 
CLUSION OF  THIS  WORK. 

§  100.  Sources  of  the  Conflict.  The  partisans  of  natu- 
ral rights  are  not  so  much  disposed  as  formerly  to  balance 
personal  conscience  against  the  conscience  of  the  mass, 
the  individual  against  the  State.  The  idea  of  indi- 
vidualism has  changed;  it  has  been  given  new  life  and 
a  different  form  by  the  idea  of  solidarity.  The  co- 
operation of  other  men  seems  necessary  to  the  develop- 
ment of  the  ego.  But  conflict  cannot  always  be  avoided, 
and  takes  on  at  once  an  acute,  an  almost  tragic  character. 
We  have  seen  only  too  frequent  examples  of  this  in  the 
course  of  recent  years. 

Almost  everywhere  military  service  has  become  com- 
pulsory; the  law  permits  no  exceptions.  What  shall  a 
man  do  whose  religious  principles  forbid  his  bearing  arms, 


134  RECENT   PHASES  [Ch.XII 

who  looks  upon  war  as  common  murder,  as  a  crime? 
The  army  must  often  intervene  in  strikes.  Military 
discipHne  admits  of  no  exceptions;  the  workingman, 
incorporated  in  the  army,  is  a  soldier  like  any  other.  In 
the  course  of  a  strike,  he  may  be  called  upon  to  march 
against  men  whose  views  and  whose  interests  are  the 
same  as  his  own.  They  may  be  his  acquaintances,  his 
friends,  his  relatives.  If  he  is  ordered  to  fire  on  them 
must  he  obey? 

Troubles  growing  out  of  an  enforcement  of  measures 
of  religious  politics  have  created  grievous  situations  and 
crises  of  conscience.  An  officer  influenced  by  religious 
feeling,  to  whom  the  violation  of  an  edifice  consecrated 
to  worship  is  a  profanation,  is  ordered  to  break  in  the 
doors  of  a  church  ;  what  should  he,  what  can  he  do?  ^ 

Which  should  prevail  in  these  cases  of  conflict  between 
conscience  and  the  law,  and  who  shall  be  the  judge? 
Before  looking  into  the  problem,  let  us  consult  the  past; 
for  it  will  interest  us  to  inquire  how  men  have  acted  in 
former  times,  and  what  doctrines  they  have  formulated. 
§101.  The  Conflict  Historically  Considered.  1:  Its 
Absence  from  the  Ancient  World.  The  ancients 
seem  to  have  known  nothing  of  this  duplication  of 
one's  personality.  The  individual  belonged  wholly  to 
his  group,  to  his  family,  to  his  city,  which  could  dis- 
pose of  his  property,  his  liberty,  his  life,  and  his  honor, 
and  could  control  or  dictate  his  belief.  Even  if  unjustly 
condemned,  he  must  submit,  and  respect  the  law's 
omnipotence.  When  Crito  offers  to  Socrates  the  means 
of  escape  into  Thessaly,  the  master  refuses,  believing 
himself  bound  to  undergo  the  punishment  to  which 
the  magistrates  have  condemned  him. 

1  The  much  mooted  question  of  the  right  of  an  official  to  strike  seems 
to  us  to  belong  in  the  same  class.  The  status  of  the  functionary  is 
determined  by  the  law  ;  the  functionary  who  goes  on  strike  revolts  against 
the  law.     But  in  certain  cases  cannot  this  revolt  be  justified? 


§  101  ]       LAW  vs.  PRIVATE  CONSCIENCE  135 

2:  Its  Rise  with  Christianity.  We  have  seen 
that  it  is  Christianity  which  first  opposes  the  indivi- 
dual to  the  State,  or  conscience  to  the  law.  It  was  in 
obedience  to  conscience  that  the  Christians  defied  the 
law  of  the  State  and  gave  themselves  up  to  martyrdom. 
Persecutions  carried  on  in  the  name  of  orthodoxy  have 
also  made  their  martyrs  ;  wherever  the  religious  majority, 
supported  by  the  secular  power,  seeks  to  impose  its  belief 
on  the  minority,  the  latter  invokes  conscience  as  its  law 
and  offers  resistance.  It  is  persecuted  in  the  belief  that 
religious  unity  is  indispensable  to  the  unity  of  the 
State. 

3:  The  "Pactum  Subjectionis"  and  the  Right 
OF  Revolt.  The  question  of  the  right  of  revolt  is 
warmly  debated  by  the  philosophers  and  the  theologians. 
Most  of  them  admit  the  existence  of  this  right,  founded 
on  an  implied  clause  in  the  "pactum  subjectionis"  which 
binds  the  subject  to  the  sovereign.  If  the  sovereign  vio- 
lates his  obligations,  the  contract  is  no  longer  valid, 
and  may  be  annulled  ;  the  king  may  be  deposed.  Some 
thinkers,  like  Hubert  Languet  and  Mariana,  go  so  far 
as  to  admit  that  tyrannicide  is  legitimate;  but  the  major- 
ity stop  at  the  right  of  revolt,  and  the  greater  part  of 
this  majority  authorize  only  measures  of  collective 
resistance.  Previously  to  the  "pactum  subjectionis"  the 
sovereignty  belonged  to  the  nation,  which  alone  could 
reclaim  it.^ 

4:  The  Attitude  OF  the  Church.  Among  these 
conflicting  opinions  the  Church  remains  neutral.  As 
a  general  principle,  it  considers  all  temporal   power  as 

*  In  the  "Vindiciae  contra  Tyrannos,"  attributed  to  Hubert  Languet, 
it  is  the  representatives  of  the  people,  that  is,  the  high  officers  of  the 
crown,  who  alone  are  concerned  with  the  manner  in  which  the  "pactum 
subjectionis"  is  observed,  and  who  at  need  can  urge  the  deposition  of 
the  king  by  the  assembly  of  the  three  orders.  (Cf.  Atger's  "Histoire 
des  Doctrines  du  Contrat  Social,"  p.  118.) 


136  RECENT   PHASES  [  Ch.  XII 

deserving  of  respect,  because  derived  from  God.  The 
right  of  revolt  is  condemned  by  Gregory  XVI  in  his 
Mirari  Vos  encyclical  (August  15,  1832)  and  in  the 
syllabus  accompanying  Pius  IX's  Quanta  Cura  encyclical 
(December  8,  1864).^  But  it  is  generally  admitted  that 
these  propositions  do  not  exclude  the  legitimacy  of  the 
right  of  revolt  in  extreme  cases.  In  the  Libertas  en- 
cyclical issued  by  Leo  XIII  (June  20,  1888),  it  is  written, 
"Nor  does  the  Church  condemn  the  desire  to  free  one's 
country  from  a  foreigner  or  a  despot,  provided  that  this 
may  be  done  without  a  breach  of  justice."  *  In  fact, 
as  Balm  es  says,^  the  Church  neither  approves  nor 
formally  condemns  any  of  the  intermediary  theses;  and 
the  question  is  left  to  the  discussions  of  the  canonists. 
These  distinguish  several  forms  of  resistance  —  passive, 
defensive,  and  aggressive.  Passive  resistance  consists 
in  refusing  to  obey  the  law  voluntarily,  yielding, however, 
to  force;  it  is  universally  regarded  as  legitimate.^  De- 
fensive resistance  opposes  violence  to  violence,  and  here 
again,  approval  is  practically  unanimous.'^  Aggressive 
resistance  is  organized  violence  directed  against  injustice, 
and  is  properly  speaking  insurrection.  It  is  over  this 
subject,  naturally,  that  most  of  the  controversies  arise; 

3  The  proposition  condemned  is  formulated  as  follows:  "It  is  per- 
missible to  refuse  obedience  to  legitimate  princes,  and  even  to  revolt 
against  them."     (Proposition  Ixiii.) 

^"Neque  illud  Ecclesia  damnât  velle  gentem  suam  nemini  servire 
nee  externo  nee  domino,  si  modo  fieri  incolumi  justitiâ  queat." 

'  "The  Church  has  refrained  from  condemning  any  of  the  opposed 
doctrines."  {Balmes,  "Le  Protestantisme  comparé  au  Catholicisme," 
Paris,  1834,  v.  3,  p.  214.) 

6"Verum  ubi  imperandi  jus  abest,  vel  si  quidquam  praecipiatur  rationi, 
legi  aeternae,  imperio  Dei  contrarium,  rectum  est  non  parère  scilicet 
hominibus,  et  Deo  pareatis."  (Leo  XIII's  Libertas  encyclical,  June  20, 
1888.) 

'See  the  4th  instruction  from  the  Janvier  canon,  "Des  droits  de  la 
conscience  vis-à-vis  de  la  loi  injuste."  (Notre-Dame-de-Paris  lectures, 
7th  year,  no.  7.     Lenten  sermons  of  1909,  p.  54.) 


§  101  ]       LAW  vs.  PRIVATE  CONSCIENCE  137 

the  prevailing  opinion  is  that  it  can  be  admitted  only 
as  a  last  resort,  "ultimum  remedium."  ^ 

5:  Tyrannicide.  Carried  to  its  furthest  limit,  the 
doctrine  of  the  right  of  resistance  justifies  tyranni- 
cide. That  this  subject  has  been  passionately  discussed 
at  certain  periods  of  our  history  is  well  known.  At  the 
time  of  the  League,  the  Catholic  writers,  or  at  least  the 
extremists  among  them,  held  that  tyrants  should  be 
put  to  death.  ^  After  the  miassacre  of  Saint  Bartholo- 
mew, the  Protestant  writers  asserted  the  right  of  in- 
surrection ;  but  most  of  them  refused  to  excuse  regicide, 
or  at  most  excused  it  as  did  Théodore  de  Bèze,  only  if 
the  tyrant  was  a  usurper.^** 

6:  The  Right  of  Resistance  in  the  French 
Constitution.  At  the  beginning  of  the  Revolution, 
all  of  these  doctrines  constituted  just  so  many  pre- 
cedents, ready  to  be  invoked  whenever  the  time  arrived. 
Among  the  rights  enumerated  in  article  2  of  the  first 
Declaration  of  the  Rights  of  Man,  after  liberty,  pro- 
perty, and  safety,  comes  resistance  to  oppression.  There 
is  no  definition  of  the  character  or  the  bearing  of  this 
right  of  resistance  either  in  the  Declaration,  or  in  the 
constitution  of  1791,  or  in  the  discussions  which  pre- 
ceded them.  The  Declaration  of  Rights  placed  at 
the  head  of  the  constitution  of  June  24,  1793,  is  more 

8  Borrowing  and  developing  an  argument  of  St.  Thomas,  the  Janvier 
canon  states:  "Sedition  is  a  revolt  against  the  good,  and  in  these  ex- 
tremities of  which  I  speak,  the  really  seditious  thing  is  the  power  which 
is  put  forth  to  wrest  souls  from  a  respect  for  truth,  for  order,  and  for 
justice;  it  is  not  the  community  struggling  to  save  its  honor,  its  dignity, 
and  its  life"  (loc.  cit.,  p.  54).  Cf.  "Summa  Theologica  S.  Thomae:" 
"Magis  autem  tyrannus  seditiosus  est,  qui  in  populo  sibi  subjecto  dis- 
cordias  et  seditionem  nutrit,  ut  citius  dominari  possit."  (Secundae 
partis  articulus  ii,  conclusio  questionis  xlii;   Lyons,  1677,  p.  94.) 

^Douarche,  "De  Tyrannicidio  apud  Scriptores  XVI  Seculi"  (Latin 
thesis),  1888. 

10  From  "Le  Droit  des  Magistrats  sur  leurs  Sujets."  Cf.  Duguit, 
"Droit  Constitutionnel,"  p.  678. 


138  RECENT   PHASES  [Ch.  XII 

explicit"  ;  but  among  the  passages  relating  to  resistance 
to  oppression,  only  article  35  is  sufficiently  general  to 
imply  that  any  attempt,  whether  legal  or  not,  against 
the  rights  of  man  amounts  to  oppression.  Even  this, 
however,  is  not  very  clearly  stated.  The  other  pro- 
visions relate  to  cases  in  which  oppression  results  from 
arbitrary  measures,  that  is  to  say,  from  those  contrary 
to  an  express  law.  Everything  points  to  the  conclusion 
that  the  constitution  does  not  willingly  admit  that  there 
may  be  cases  in  which  resistance  to  the  law  is  a  legitimate 
right.  12 

In  what  degree  is  the  right  of  resistance  recognized 
to-day  ?  To  answer  this  question,  we  must  distinguish 
two  kinds  of  cases  —  those  in  which  the  measure  re- 
sisted is  unlawful,  and  those  in  which  it  is  lawful,  indeed, 
but  regarded  as  iniquitous.  In  the  first  place,  statutory 
and  judicial  law  afford  a  certain  protection  to  citizens 
aggrieved  by  violation  of  the  law,  even  when  this  is  the 
act  of  agents  of  the  public  authority.  If  the  act  is 
inspired  by  personal  feeling,  that  is,  if  the  agent  has  ex- 
ceeded his  function  through  malevolence  or  passion, 
he  becomes  personally  responsible  and  is  liable  for 
damages.  If  the  act  is  a  fault  of  procedure,  the  ad- 
ministration may  be  held  responsible,  but  this  responsi- 
bility assumes,  in  several  instances,  an  exceptional 
character.     Thus  an  unjust  sentence  involves  the  State 

11  "Art.  11.  Any  act  committed  against  a  man  except  within  the 
cases  and  according  to  the  forms  prescribed  by  law,  is  arbitrary  and 
tyrannical;  that  person  against  whom  an  attempt  is  made  by  violence 
to  execute  the  law,  has  the  right  to  repel  it  by  force. —  Art.  32.  Re- 
sistance to  oppression  is  the  consequence  of  the  other  rights  of  man. — 
Art.  33.  It  is  oppression  of  the  social  body  for  a  single  one  of  its  members 
to  be  oppressed. —  When  the  government  violates  the  rights  of  a  people, 
insurrection  is  for  the  people  and  for  every  portion  of  the  people  the  most 
sacred  of  rights  and  the  most  indispensable  of  duties." 

12  "Art.  10.  Any  citizen  sunmioned  or  laid  hold  of  by  the  authority 
of  the  law  ought  to  obey  at  once;  he  renders  himself  guilty  by  resist- 
ance." 


§  101  ]       LAW  vs.  PRIVATE  CONSCIENCE  139 

only  in  so  far  as  the  innocence  of  the  person  sentenced 
has  been  established  by  a  judgment  or  a  writ  of  review. ^^ 
If  no  sentence  has  been  pronounced,  as  for  example  when 
an  indictment  has  been  thrown  out  or  an  acquittal  ren- 
dered by  a  court  having  jurisdiction,  the  wrong  caused  by 
a  rash  or  erroneous  examination  is  not  sufficient  ground 
for  reparation.  There  are  two  kinds  of  protection 
against  the  administrative  commands  of  public  authority  : 
if  an  order  has  not  been  made  legally^^  violation  of  it 
is  not  punishable;  incompetency  or  violation  of  law 
opens  the  way  for  an  appeal  to  the  Council  of  State 
against  abuse  of  power. 

7:  Conservative  Interpretations  in  Our 
Courts.  Aside  from  these  legal  means,  may  one  forci- 
bly resist  agents  of  the  public  authority  who  are  act- 
ing in  violation  of  the  law?  The  penal  code  of  1791^^ 
did  not  qualify  as  rebellion  any  resistance  offered  to  a 
public  officer,  except  when  that  officer  himself  had 
acted  legally  in  the  line  of  his  duty.  Certain  codes, 
for  example  the  German,  the  Hungarian, ^^  and  the 
Italian  ^^  still  treat  the  existence  of  the  offense  of  re- 
bellion as  governed  by  the  legal  character  of  the  act 
performed  by  the  representative  of  authority.  Article 
209  of  the  French  penal  code  contains  no  definite  state- 
ment, and  defines  as  rebellion  all  violent  resistance  to, 
or  assaults  upon,  the  agents  of  the  administrative  or 
judicial  police,  acting  in  execution  of  the  laws,  commands 
or  ordinances  of  public  authority,  or  the  decisions  or 
mandates  of  the  courts.     It  does  not  say  whether  the 

"Art.  445,  Code  d'Instruction  Criminelle,  modified  by  the  Law  of 
June  8,  1895. 
"Art.  471. 

15  Part  2,  title  1,  sec.  iv,  art.  1. 

16  Cf.  Garraud,  "Traité  de  Droit  Pénal,"  v.  3,  p.  524,  note  32. 
"Penal  Code  of  Italy  (art.  192)  and  the  note  in  the  Lacointa  trans- 
lation. 


140  RECENT   PHASES  [Ch.  XII 

orders  given  to  the  executive  agents  must  be  regular, 
and  conformable  to  law.  This  uncertainty  permits  two 
possible  modes  of  interpretation.  Some  would  say  that 
the  distinction  could  be  drawn  only  from  the  text  of 
the  law,  and  the  text  does  not  contain  it.  The  legality 
of  acts  of  authority  may  be  subject  to  judicial  inquiry, 
but  refusal  to  obey  and  recourse  to  violence  are  not  to 
be  permitted  in  any  case.  By  others  it  may  be  argued 
that  the  code  cannot  have  intended  to  condemn,  by 
simple  omission,  a  long  established  tradition.  Before 
the  Revolution,  under  a  régime  which  permitted  so  much 
that  was  arbitrary,  it  was  nevertheless  recognized  that 
in  certain  cases  agents  of  authority  might  be  resisted 
with  violence  if  they  were  acting  in  an  illicit  manner. ^^ 
The  appellate  courts  have  decided  somewhat  frequently 
that  resistance  to  unlawful  acts  is  not  punishable.^^ 
The  Court  of  Cassation  has  been  more  conservative,  and 
is  little  disposed  to  give  open  sanction  to  the  right  of 
resistance;  yet  in  certain  cases  it  has  admitted  that 
resistance  to  unlawful  acts  could  not  be  regarded  as 
rebellion.^"  But  all  of  these  were  cases  of  flagrant  il- 
legality, the  agents  resisted  not  being,  for  example, 
provided  with  warrants. 

Infringement  of  personal  rights  may  be  compared  with 
unlawful  acts  involving  things.  A  question  arose  when 
measures  were  taken  against  private  property  occupied 
by  religious  congregations.  After  the  expulsion  of  these 
congregations,  the  chief  of  police  closed  and  sealed  the 
doors.  Did  the  proprietor  who  broke  the  seals  commit 
an   offense?     According   to   certain   decisions  ^i  he  was 

^«Jousse,  "Traité  de  la  Justice  Criminelle,"  v.  4,  pp.  79  and  80. 
"Lyons,  June  10.  1824;   August  24.   1826.     Riom,  January  4,   1827. 
Limoges,  February  28,  1838.     (Sirey  1838.2.300.) 

20  Cassation.  April  7, 1837.  Sirey  1838.1.641.  March  25.  1852.  Bull. 
Crim.  p.  108. 

21  Rennes.  October  27,  1902;  GT  October  30,  1902.  Chambéry. 
October  4,  1902;   GT  October  22.  1902. 


§  101  ]       LAW  vs.  PRIVATE  CONSCIENCE  141 

not  guilty;  but  the  Court  of  Cassation  ruled  to  the 
contrary .^^  It  is  difficult  to  say  whether  the  Court 
meant  to  condemn  indiscriminately  all  resistance  to 
acts  of  public  authority,  or  whether  it  merely  meant  to 
affirm  that  in  this  case  there  was  nothing  illegal  in  affix- 
ing the  seals.  In  general  it  is  held,  as  Barbeyrac^^ 
once  maintained,  that  for  one  to  escape  punishment  it 
is  not  enough  that  the  action  opposed  should  be  illegal; 
this  illegality  must  be  manifest  and  intolerable.  This 
is  an  uncertain  criterion.  For  one  thing,  it  is  not  so 
easy  as  one  might  suppose  to  recognize  illegality;  for 
this  can  nearly  always  disguise  itself  so  artfully  as  to 
resemble  the  right;  it  appeals  to  the  texts,  and  invokes 
or  evades  them  by  subtle  distinctions.  It  is  still  more 
difficult  to  weigh  the  gravity  of  the  illegal  act.  "If 
in  a  given  case,"  says  Chavegrin,  ^'^  "it  is  certain  that  the 
law  has  been  broken,  and  we  inquire  whether  the  violation 
has  been  intolerable,  the  reply  will  vary  with  the  times 
and  with  the  people.  One  has  only  to  turn  to  written 
works  on  the  subject  to  find  how  widely  divergent  they 
are;   the  decisions  of  the  courts  are  no  more  consistent." 

So  we  may  say  that  resistance  offered  to  an  officer  of 
the  law  is  in  fact  rarely  looked  upon  as  legitimate;  it  is 
an  act  of  courage  involving  considerable  risk.  It  is  still 
more  dangerous  to  refuse,  from  conscientious  motives, 
to  obey  the  law.  If  the  law  has  a  penalty,  this  penalty 
is  inevitably  incurred.  At  most,  the  motive  of  the 
offender  may  be  taken  as  a  mitigating  circumstance. 

In  general,  within  unified,  well  consolidated  groups, 
a  refusal  to  submit  to  the  law  for  conscientious  reasons 
causes  amazement  in  the  beginning,  rather  than  anger. 
It  not  infrequently  happens  that  acts  are  not  repressed 

"Cassation,  November  28,  1902,  December  26;  January  2,  1903. 
Sirey  1904.1.59  and  the  note  by  Chavegrin. 

23  Note  on  Grotius,  1759  edition,  v.  i,  p.  171,  note  4,  §  2. 

24  Sirey,  loc.  cit.,  p.  59,  col.  1. 


142  RECENT   PHASES  [Ch.  XII 

at  first,  or  are  dealt  with  very  leniently.  During  the 
Revolution,  the  Anabaptists  of  Alsace  sent  delegates  to 
the  convention  to  explain  that  their  religion  forbade 
their  bearing  arms.  As  a  consequence,  a  decree  of  the 
committee  of  public  safety  "invites  the  competent 
authorities  to  use  men  of  this  sect  in  the  transportation 
service  by  preference,  or  even  to  exempt  them  for  a 
money  payment."  ^^ 

In  certain  countries,  Switzerland,  Sweden,  Norway, 
and  even  Germany,  for  example,  proceedings  have  not 
been  taken  against  stubborn  conscripts  of  this  sort; 
they  have  merely  been  assigned  to  unarmed  auxiliary 
service.  It  was  doubtless  remembered  that  such  cases 
have  been  extremely  rare,  that  rigorous  punishment 
would  seem  excessive,  attract  attention,  and  excite  pity. 
In  France,  however,  it  has  been  felt  to  be  impossible  to 
make  exceptions.  In  the  cases  which  have  arisen,  the 
young  men  who  refused  to  take  up  arms  were  brought 
before  a  council  of  war,  punished  for  disobeying  orders, 
and  sent  back  to  their  regiment  at  the  end  of  their  term 
of  punishment;  when  their  resistance  continued  they 
were  prosecuted  and  sentenced  again.  The  situation 
seemed  without  issue,  but  a  way  out  of  it  had  to  be 
found.  After  an  at  least  apparent  submission,  a  com- 
promise was  effected  by  reduction  of  military  rank  and 
assignment  to  an  auxiliary  corps.  The  only  advantage 
gained  by  these  condemnations  was  the  discouragement 
of  pretenders;  but  this  was  perhaps  offset  by  the  harm 
resulting  from  a  punishment  which  public  sentiment 
disapproved,  and  which  seemed  both  maladroit  and  too 
severe.  There  is  no  doubt,  however,  that  energetic 
repression  would  have  been  resorted  to  if  these  cases 

26  Communication  from  M.  Kellermann  to  the  2d  National  Congress 
of  the  French  Peace  Societies:  Report  of  the  sessions,  Nimes,  1904, 
p.  46. 


§  101  ]       LAW  vs.  PRIVATE  CONSCIENCE  143 

of  resistance  had  so  multiplied  as  to  constitute  a  real 
danger  to  the  State.  Under  these  conditions,  any  group 
thus  threatened  defends  itself  with  extreme  determin- 
ation^®  until  such  time  as,  by  a  kind  of  contagion,  the 
resistance  of  individual  consciences  modifies  the  public 
conscience.  Repression  is  then  powerless;  in  a  contest 
of  this  kind,  conscience  triumphs  over  the  law. 

§  102.  The  Problem  Considered  in  Itself.  1:  At 
First  it  seems  Insoluble.  It  is  now  proper  to  face 
the  problem  in  itself.  At  first  glance  it  seems  insol- 
uble. To  sacrifice  the  law  to  individual  conscience  is 
to  destroy  its  authority;  it  is  to  permit  each  citizen  to 
be  his  own  judge  of  what  he  should  or  can  concede; 
it  is  to  establish  a  kind  of  "liberum  veto,"  every  law 
being  submitted  for  ratification  to  those  who  owe  it 
obedience;  every  person  remaining  free  to  refuse  to 
obey,  and  to  treat  the  law  as  inimical  to  conscience  and 
violative  of  natural  rights.  It  is  a  régime  which  makes 
all  government  impossible.  Undoubtedly  there  will 
always  be  some  who  think,  or  pretend  to  think,  that  the 
law  is  not  legitimate,  and  that  they  are  not  bound  to 
respect  it.  Often  a  conscientious  reason  will  serve  merely 
to  mask  a  selfish  one.  On  the  other  hand,  it  seems  an 
equally  serious  thing  to  subordinate  conscience  to  the 
law,  which  then  becomes  a  mere  instrument  of  tyranny. 
Not  only  is  the  citizen  unjustly  oppressed,  but  the  law 
loses  its  own  basis  when  it  offends  the  very  feelings 
from  which  respect  for  it  arises.  A  law  which  disregards 
the  rights  of  conscience  ceases  to  be  a  juridical  rule;  it 
is  only  a  "blind  and  despotic  force."  " 

2:  The  Logic  of  Life  a  Harmonizing  Factor. 
The    conflict    seems    incapable   of   adjustment.     There 

26  Thus  federalistic  attempts  are  relentlessly  thwarted  in  countries 
the  unity  of  which  is  established. 

" Boutroux,  "La  Conscience  Individuelle  et  la  Loi."  RMM  1906, 
p.  14. 


144  RECENT   PHASES  [Ch.XII 

are,  however,  many  such  problems  which  the  logic  of 
concepts  does  not  solve,  but  for  which  life  must  furnish 
a  solution  at  whatever  cost.  Each  of  us  succeeds,  to 
a  greater  or  less  degree,  in  reconciling  sentiment  and 
reason,  knowledge  and  faith,  freedom  and  moral  obliga- 
tion, duty  towards  one's  country  and  duty  towards 
humanity.  As  Boutroux  says,^^  "there  is  a  logic  other 
than  logic  properly  so-called,  or  the  logic  of  concepts; 
there  is  the  logic  of  life,  of  reality,  of  nature,  of  reason 
in  the  full  and  concrete  sense  of  the  word.  While  dia- 
lectic shows,  with  the  facile  clearness  of  its  spatial  lan- 
guage, the  reciprocal  impenetrability  of  the  unit  and  the 
multiple,  of  the  one  and  the  other,  nature  is  pleased  to 
unite  them  in  her  creations." 

Moreover,  as  Boutroux  points  out,  conscience  and  the 
law  are  ideas  which  are  solidary  rather  than  in  opposition. 
They  complete  and  support  each  other.  What  kind 
of  law  is  it  which  disregards  rights  of  conscience?  What 
kind  of  conscience  is  it  which  does  not  feel  the  necessity 
of  submitting  to  the  law,  of  sacrificing  itself  to  order  and 
the  common  weal?  Conscience  should  not  be  repre- 
sented as  a  fortress,  as  a  place  of  refuge,  inacessible  to 
the  law;  nor  the  law  as  a  sovereignty  in  a  separate 
domain.  "However  skillfully  the  delimitation  of  the 
two  domains  be  made,  it  will  still  be  artificial.  Man  is 
one,  as  is  the  world  in  which  he  lives.  Conscience  and 
the  law  are  two  creations  of  the  mind,  not  préexistent, 
impenetrable  things.  Look  beyond  the  metaphors,  look 
for  the  real  behind  the  abstract  and  the  scholastic,  and 
you  will  see  law  and  conscience  intermingled,  each  de- 
termined by  the  other.  This  is  the  key  to  history;  this 
is  the  true  logic,  not  of  dialectic  merely,  but  of  life  and 
reason.  "2^ 

28Loc.  cit.,  p.  10. 
"Loc.  cit.,  p.  15. 


§102]       LAW  vs.  PRIVATE  CONSCIENCE  145 

3:  The  Duty  to  Promote  the  Interpénétra- 
tion OF  TWO  Worlds.  We  must  try,  then,  to  "main- 
tain and  to  promote  this  interpénétration  as  far  as 
possible."  We  must  at  the  same  time  contribute  to  the 
estabUshment  and  development  of  the  spirit  of  legality, 
must  encourage  men  to  love  and  respect  the  law,  to  love 
and  respect  human  personality,  to  preserve  it  from  all 
oppression,  to  commit  no  offense  against  its  dignity. 
Duty  consists  in  taking  up  the  defense  of  the  one  or 
the  other  according  to  circumstances.  "If  the  cohesion 
of  the  community  is  threatened,  we  should  strive  to 
maintain  it;  if  the  dignity  of  the  conscience  is  imperiled, 
we  must  come  to  its  rescue."  ^° 

May  we  not  hope  that  the  time  will  come  when  this 
equilibrium  will  be  permanently  established,  when  the 
two  ideas  will  be  completely  merged,  when  it  will  be 
perceived  that  conscience  and  law,  far  from  contradict- 
ing each  other,  offer  and  receive  a  mutual  support? 


§  103.  Conclusion  of  this  Work.  We  have  tried  to 
show  why  and  how  there  has  been  a  renascence  of  natural 
law.  The  confirmation  of  natural  law,  or  more  exactly 
of  juridical  idealism,  has  appeared  to  us  to  offer  the  only 
solution  for  the  crisis  in  legal  philosophy.  This  crisis 
results  from  the  impracticability  of  rationally  and 
scientifically  \'indicating  the  idea  of  law,  and  from  the 
insufficiency  of  the  expedients,  the  empirical  processes, 
which  deplete  it  of  its  moral  content.  If  it  is  possible 
neither  to  justify  the  idea  of  law  nor  to  do  without  it,  the 
only  escape  from  the  dilemma  lies  in  performing  an  act 
of  faith.  The  idea  of  law  is  accepted  as  a  belief,  as  a 
datum  of  feeling.  It  is  possible  that  there  is  an  element 
of  Pragmatism  in  this  conception,  but  it  is  a  mitigated 

'"Loc.  cit.,  p.  15. 


146  RECENT   PHASES  [  Ch.  XII 

Pragmatism,  subjected  to  the  control  of  reason;  here 
reason  does  not  contradict  feeling,  nor  is  there  any  dis- 
cord between  the  two. 

The  idea  of  natural  law,  then,  is  differently  conceived 
from  the  way  it  formerly  was.  It  rests  upon  another 
foundation,  and  at  the  same  time  it  undergoes  certain 
transformations.  It  reconciles  itself  with  the  idea  of 
evolution,  with  that  of  utility.  It  loses  its  absolute,  im- 
mutable character,  for  it  possesses  only  a  variable  con- 
tent. It  takes  account  of  the  interdependence  of  the 
individual  and  the  community;  it  thus  tends  to  bring 
the  individual  conscience  and  external  law  into  accord, 
instead  of  setting  them  in  opposition. 

Legal  idealism  has  not  become  enfeebled  by  reason 
of  its  transformation;  on  the  other  hand  it  has  been 
compacted  and  enlarged. 


PART  II 


SOME  IMPORTANT   POINTS  OF  VIEW  IN  CON- 
TEMPORARY FRENCH  LEGAL  PHILOSOPHY 


(A) 
(B) 
(C) 


Synthesis    of    Idealism    and   Naturalism  — 
Alfred  Fouillée 

Theory  of  Objective  Law  Anterior  to  the 
State  —  Léon  Duguit 


Anai.ysis  of  Fundamental  Notions- 
Demogue 


René 


(A)     SYNTHESIS    OF    IDEALISM     AND     NATURALISM  — 
ALFRED  FOUILLÉE 

Chapter       I.    Criticism  of  the  Traditional  Idea  of 

Law  Based  on  Free  Will 149 

Chapter  IL  The  True  Side  of  Naturalism  —  Cri- 
tique of  the  Conception  of  Law  as 
Something  in  the  Order  of  Nature  163 

Chapter  III.  The  True  Side  of  Idealism  —  Law  Con- 
ceived AS  Belonging  to  the  Ideal 
Order 169 

Chapter  IV.  Scientific  Reconciliation  of  Natural- 
ism AND  Idealism  by  Means  of  the 
Force-Idea  of  Right 179 

Chapter      V.    Metaphysical  Hypotheses  Concerning 

the  Ultimate  Basis  of  Law 192 

Chapter  VI.  The  Agreement  of  the  Theory  of 
Ideal  Right  with  the  Force  and 
Interest  Theories 207 

Chapter  VIL  The  Directive  Ideas  and  Their 
Struggle  for  Existence  —  The  Fu- 
ture of  the  Idea  of  Right 216 


(A)     SYNTHESIS     OF     IDEALISM     AND 
NATURALISM  —  ALFRED  FOUILLÉE 

CHAPTER  D 

CRITICISM    OF   THE   TRADITIONAL    IDEA   OF 
LAW   BASED   ON   FREE  WILL 

INTRODUCTION:  THE  LAW  AND  LIBERTY,  THEORY  OF 
THE  IDEAL  RIGHT  —  THREE  PHASES  OF  THE  PROBLEM 
OF  FREEDOM  —  THE  VALUE  OF  FREEDOM,  ITS  RELATION 
TO  ITS  END  — THE  INMOST  NATURE  OF  FREEDOM  — 
FREE  WILL  AND  FREEDOM  OF  INDIFFERENCE  DISTIN- 
GUISHED—DOES FREE  WILL  JUSTIFY  "INVIOLABILITY?" 
FREE  WILL  AN  INADEQUATE  BASIS  FOR  LAW  — PARA- 
DOXICAL CONCLUSIONS  —  FURTHER  LIMITATIONS  OF 
THE  DOCTRINE  — SCIENTIFIC  OBJECTIONS  TO  FREE 
WILL  — THE  DIFFICULTIES  SUMMARIZED  —  THE  ERROR 
OF  COMPLETE  RENUNCIATION  OF  FREE  WILL  — CON- 
TRADICTORY VIEWS  TO  BE  RECONCILED  —  THE  SUBJECT 
FURTHER  OUTLINED. 

§  104.  Introduction  :  The  Law  and  Liberty,  Theory  of 
the  Ideal  Right.  The  ancients  conceived  the  human 
world  and  the  physical  universe  as  of  the  same  type. 
The  physical  universe  was  a  sphere  enclosed  by  a  crystal 
vault,  within  which  was  the  earth,  a  single  center  for 
all  bodies  and  for  all  the  stars.     Similarly  the  State  was 

1  [Chapters  xiii  to  xviii  (inclusive)  =  Book  IV  of  Fouillées  "Idée 
Moderne  du  Droit,"  this  division  of  the  original  work  being  entitled 
"Lav^f  and  the  Idea  of  Liberty  —  Theory  of  Ideal  Right."  For  this 
author  and  work,  see  the  Editorial  Preface. — Ed.] 


150  ALFRED  FOUILLÉE  [  Ch.  I 

a  closed  sphere,  within  which  all  was  subordinate  to  a 
single  power.  According  to  this  absolutist  idea,  the 
individual  could  find  his  value  and  his  rights  only  in  the 
State  ;  and  legal  or  political  systems  were  hardly  anything 
but  systems  of  centralization.  Little  by  little  the  old 
conception  has  given  way  to  a  more  liberal  one,  and  the 
modern  idea  of  the  social  order  is  not  without  analogy 
to  the  modern  conception  of  the  astronomic  scheme. 
Shattering  the  crystal  sky  with  which  Aristotle  sur- 
rounded the  world,  science  has  made  the  universe  an 
infinite  sphere,  the  circumference  of  which  is  nowhere; 
and  at  the  same  time,  instead  of  a  single  center,  it  has 
placed  the  center  everywhere,  for  every  object  gravi- 
tates towards  all  the  others  and  all  the  others  gravitate 
towards  it.  The  controlling  force,  formerly  centered 
in  the  motionless  earth,  is  now  dispersed  through  in- 
finite space,  and  coincident  with  being  and  motion 
resides  in  all  objects  alike.  The  stellar  universe  is  in  a 
sense  decentralized,  and  it  is  the  same  with  the  moral 
and  social  world;  its  limits  recede  to  infinity  and  parti- 
cular groups  tend  to  lose  themselves  in  the  universal 
society.  True  law  is  no  longer  the  mere  will  of  a  prince 
or  the  interest  of  a  people;  it  is  the  right  of  all  mankind. 
As  a  result  of  this,  the  center  of  law  is  CNerywhere,  and 
each  individual  may  be  considered  in  turn  as  end  or  as 
means,  as  obeying  or  commanding,  as  subject  or  legis- 
lator, in  the  "universal  republic." 

As  we  have  seen,  it  is  especially  in  France,  thanks  to 
the  spontaneous  or  reflective  tendencies  of  the  national 
mind  and  the  national  philosophy,  that  this  doctrine  has 
attained  its  highest  form  and  that  its  application  has  been 
attempted.  Now  its  philosophic  basis  is  a  principle 
which  at  first  sight  seems  simple,  but  which  is  really 
difficult  to  justify:  moral  freedom  considered  as  abso- 
lutely inviolable.     This  principle  is  to-day  battered  and 


§104]    THE  IDEA  BASED  ON  FREE  WILL        151 

breached  in  every  part;  and  it  is  necessary  to  subject 
it  to  a  close  analysis,  for  we  cannot  neglect  here  that 
study  of  principles  without  which  applied  law  and  poli- 
tics run  great  risk  of  going  astray.  "When  I  had  dis- 
covered my  principles,"  said  Montesquieu,  "all  the  rest 
came  to  me." 

§  105.  Three  Phases  of  the  Problem  of  Freedom.  The 
philosophers  of  pure,  abstract  legal  right,  especially  in 
France,  have  too  often  clung  in  their  theories  to  vague 
and  general  expressions  concerning  the  "dignity"  of  the 
human  being  and  the  "respect"  which  is  his  due,  instead 
of  settling  these  three  points:  the  value  of  freedom, 
the  relation  of  freedom  to  its  end,  and  the  inmost  nature 
of  freedom. 

§  106.  The  Value  of  Freedom;  Its  Relation  to  its  End. 
In  the  first  place,  the  basis  and  the  degree  of  that  dignity 
attributed  to  free  beings  should  have  been  more  pre- 
cisely indicated.  Is  it  limited  or  infinite,  subordinate 
or  independent,  relative  or  absolute?  In  other  words, 
exactly  for  what  reason  is  freedom  to  be  looked  upon  as 
grand,  noble,  inviolable?  Is  its  value  inherent  in  itself 
or  is  it  borrowed  from  a  higher  principle?  Victor  Cousin, 
and  the  French  Spiritualists  generally,  subordinated 
freedom  to  duty,  to  the  "moral  law,"  to  the  "mandates 
of  reason,"  to  a  rule  established  by  the  intellect;  but 
how  could  they  at  the  same  time  maintain  that  free 
will  is  in  itself  sacred  and  worthy  of  respect?  How  can 
freedom  be  thus  inviolable  and  still  subordinated  to  an 
end?  This  relation  of  freedom  to  its  end  was  imper- 
fectly explained  by  the  school  of  Victor  Cousin.  Indeed, 
it  was  no  longer  thought,  as  by  Kant  and  Fichte,  that 
the  end  of  freedom  is  freedom  itself;  their  doctrine 
that  "humanity  is  an  end  in  itself,"  in  the  strict  sense 
of  the  words,  was  no  longer  prevalent;  neither  was  that 
of  Proudhon  and  the  adherents  of  independent  morals, 


152  ALFRED  FOUILLÉE  [Ch.  I 

that  justice  is  human  and  only  human,  that  the  principle 
of  law  is  man  himself  and  not  some  superior  being  or 
some  higher  ordinance.  Thus  freedom  remained  a  mere 
means  for  the  accomplishment  of  our  destiny.  Now 
it  does  not  seem  reasonable  that  anything  which  is  only 
a  means  can  form  the  basis  of  an  absolute  right.  In 
fact,  Victor  Cousin  and  the  Doctrinaires  have  always 
maintained,  along  with  Royer-Collard  and  Guizot,  what 
they  called  "the  sovereignty  of  reason,"  the  "rights  of 
reason";  and  they  have  deduced  therefrom,  in  the  field 
of  politics,  conclusions  favorable  to  aristocracy,  the 
rights  of  the  wisest  and  the  most  reasonable,  or  of  those 
who  are  so  regarded.  The  compromise  of  constitutional 
monarchy,  a  mixture  of  conflicting  principles,  was  the 
faithful  expression  of  a  metaphysic  which  was  itself  in 
some  sort  constitutional  —  democratic  in  its  principle 
of  the  inviolability  of  freedom,  and  aristocratic  in  its 
subordination  of  freedom  to  a  higher  commandment. 

§  107.  The  Inmost  Nature  of  Freedom.  If  the  value 
of  freedom  and  its  relation  to  its  end  remained  thus 
vague  for  the  Spiritualist  school,  it  was  because  this 
school  was  equally  vague  concerning  the  inmost  nature 
of  freedom.  By  moral  freedom,  most  of  the  French 
Spiritualists  have  understood  nothing  other  than  the 
traditional  free  will,  and  this  free  will  has  never  been 
carefully  distinguished  from  freedom  of  indifference; 
for  it  is  reducible  to  the  power  of  willing  at  one  and  the 
same  instant,  all  else  being  equal,  a  thing  or  its  opposite, 
good  or  evil,  the  greatest  good  or  the  least.  By  ad- 
mitting the  existence  of  this  much  disputed  power,  do 
we  find  a  substantial  foundation  for  law?  Not  at  all. 
This  faculty  attributed  to  man  of  willing  one  thing 
when  he  might  will  the  opposite,  is  merely  a  force  with 
a  twofold  effect,  like  the  force  of  steam,  which  can  drive 
a  locomotive  backward  as  well  as  forward.     But  is  the 


§  107  ]    THE  IDEA  BASED  ON  FREE  WILL       153 

locomotive  any  more  sacred  and  inviolable  because  one 
can  reverse  the  steam  and  employ  the  motive  power  for 
a  double  purpose?  Does  it  not  seem,  on  the  contrary, 
that  this  very  possibility  of  two  directions,  one  of  which 
may  be  extremely  dangerous,  authorizes  and  necessi- 
tates a  vigilant  supervision  of  the  engine?  It  is  useless 
to  reply  that  if  the  engine  is  lawless  it  is  because  the 
forward  or  backward  motion  really  comes  from  the 
engineer.  Suppose  that  the  will  of  the  engineer  can  be 
reversed  as  easily  as  the  steam,  and  has  the  power  of 
willing  opposites;  or  suppose,  what  amounts  to  the 
same  thing,  that  the  engine  can  change  its  own  direction, 
how  can  we  deduce  its  inviolability  from  that?  Further- 
more, such  an  engine  would  be  so  dangerous  to  human 
kind  that  we  should  hasten  to  subject  it  by  all  possible 
means  to  steadfast  control.  No  less  dangerous  would 
be  a  will  capable  of  willing  anything  whatsoever — of 
self-determined,  incalculable  direction  towards  all  con- 
traries. No  one  could  be  safe  in  its  neighborhood.  Do 
we  not  require  the  restraint  and  sequestration  of  mad- 
men, whose  decisions  are  similarly  arbitrary  and  im- 
possible to  foresee?  Do  we  not  reestablish  the  center 
of  gravity  in  an  inaccurate  balance  which  inclines  to  the 
right  or  to  the  left?  What  many  philosophers  have 
fancied  to  be  freedom  of  the  will  seems,  on  the  contrary, 
to  be  its  mere  madness.  Confronted  by  this  fantastic 
so-called  freedom,  we  would  first  make  haste  to  get 
out  of  its  way,  and  then  to  turn  it  out  of  the  road  as  we 
would  a  wagon  drawn  by  an  unbridled  horse.  The 
metaphysical  and  moral  basis  of  law  can  never  be  found 
in  freedom  of  indifference. 

§  108.  Free  Will  and  Freedom  of  Indifference  Dis- 
tinguished. The  Spiritualist  school  has  usually  at- 
tempted to  distinguish  between  this  motiveless  freedom 
of  indifference,  too  evidently  foreign  to  right  as  well  as 


154  ALFRED  FOUILLÉE  [  Ch.  I 

to  duty,  and  free  will,  or  that  power  of  choice  among 
the  various  motives  to  action  which  Victor  Cousin  and 
his  successors  made  the  foundation  of  right  and  duty. 
Freedom  of  indifference  is  defined  as  the  power  of  choice 
without  motive,  and  free  will  as  the  power  to  choose 
among  several  different  motives.  If  in  walking  I  have 
no  motive  to  go  to  the  right  rather  than  to  the  left,  and 
if  nevertheless  I  decide  on  one  of  these  directions,  that 
would  be  freedom  of  indifference  after  the  fashion  of  Reid, 
a  freedom  evidently  chimerical;  but  if  I  have  motives 
of  interest  for  saying  the  contrary  of  what  I  think,  and 
motives  of  conscience  for  telling  the  truth,  the  choice 
between  truth  and  falsehood  will  be  the  choice  between 
acts  supported  by  different  motives,  and  not  between  two 
motiveless  acts.  Thus  runs  the  argument  of  all  partisans 
of  free  will  understood  as  a  choice  between  conflicting 
motives.  Unfortunately,  this  conception  also  resolves 
itself,  as  one  examines  it  more  closely,  into  a  freedom  of 
indétermination  incapable  of  offering  a  foundation  for 
law.  Indeed,  in  order  that  a  balance  may  incline  re- 
gardless of  weight,  it  is  not  necessary  that  there  should 
be  no  weights  in  the  scales;  it  is  enough  if  the  weights 
are  equal  and  the  balance  still  tips,  or  if  one  weight  is 
heavier  than  the  other  and  the  balance  still  tips  to  the 
weak  side.  In  both  cases  one  would  have  the  right 
to  say:  Here  is  a  balance  tipping  in  the  absence  of  all 
weight  or  even  against  all  weight,  an  indeterminate 
balance,  indifferent  to  weight.  Such  would  be  the  will 
in  a  choice  between  contrary  motives.^ 

2  Suppose,  indeed,  that  the  two  contrary  motives  or  tendencies  are 
equivalent  forces;  they  will  cancel  each  other,  and  the  choice  of  the  will, 
which  is  nevertheless  made,  is  undetermined  or  without  motive.  But 
if  these  tendencies  are  not  equal,  and  I  choose  an  act  the  incentives  and 
motives  for  which  are  least  strong,  which  have  the  least  propelling  force 
within  me,  I  act  not  only  without  motive,  but  against  all  motive.  Finally, 
if  I  make  my  resolution  in  the  direction  of  the  most  powerful  tendencies 
within  the  bosom  of  my  consciousness,  then  there  is  a  motive;   but  it 


1109]    THE  IDEA  BASED  ON  FREE  WILL       155 

§  109.     Does  Free  Will  Justify  '' Inviolability r'     Ad- 
mitting, however,  that  an  equal  power  of  determination 
among  contraries  is  granted  us,  how  shall  we  establish 
law  upon  that  foundation?     Here  at  the  end  of  our  cir- 
cuit we  are  confronted  by  the  same  objections  as  before: 
what  is   there  in  the  idea  of  total  or  partial  indéter- 
mination  which   commands   respect   and   warrants   in- 
violability?    What  is  there  so  sacred  in  possible  multi- 
plicity or  diversity,  whether  of  thoughts  or  of  volitions? 
Is  a  pendulum  more  worthy  of  respect  because  it  oscil- 
lates?    Is  an  axe  with  two  edges  more  inviolable  than 
if  it  had  but  one?     Does  a  six-chambered  revolver  con- 
fer more  rights  than  a  single-barreled  pistol?      Because 
by  turning  my  thoughts  or  my  will  about  in  all  directions, 
I  might,  at  my  discretion,  rob  you  of  your  possessions 
or  not  rob  you,  take  your  life  or  not  take  it,  evoke  one 
motive  or  the  contrary  motive,  would  you  have  for  me 
a  greater  respect?     Greater  fear,   I   grant;  but  as  to 
respect,  how  can  we  justify  it  by  this  strange  reason: 
"Here  is  a  man  equally  capable,  if  he  wishes,  of  becoming 
a  scoundrel  or  an  honest  citizen,  of  evoking  at  his  pleasure 
motives  of  rascality  or  of  honesty?"     This  consummate 
capacity  for  scoundrelism,  as  for  honesty,  this  character 

is  impossible  to  see  how,  with  the  same  innate  disposition,  with  the 
same  nature,  and  in  the  same  circumstances,  I  could  have  made  a  dia- 
metrically opposite  decision.  To  attribute  this  power  to  me  is  to  endow 
me  with  the  chance  of  Epicurus,  the  freedom  of  indifference,  which 
decides  blindfold  and  groping,  with  no  consciousness  of  any  ethcient 
reason  for  its  act.  In  fact,  this  reason  is  bound  to  be  some  power  ex- 
ternal to  the  will,  some  fortuitous  concurrence  of  circumstances,  in 
short  a  hidden  necessity.  Shall  we  say,  with  certain  philosophers, 
Jules  Leqiiier  and  Renouvier  for  example,  that  it  is  I  who  spontan- 
eously produce  the  force  of  my  motives  and  incentives,  who  conter 
upon  them  variable  and  fluctuating  powers  in  deliberation,  and  who 
thus  freely  control  my  thought  and  my  sensibilities?  This  is  to  push 
the  problem  back  a  stage,  and  to  place  the  choice  between  two  motives, 
and  not  as  before,  between  two  acts.  In  that  case,  one  chooses  without 
motive  between  two  motives.  The  indétermination  is  carried  back, 
by  a  vicious  circle,  to  the  feelings  and  to  the  intellect.  (See  "La  Liberté 
et  le  Déterminisme,"  new  edition,  2d  part,  Book  I.) 


156  ALFRED  FOUILLÉE  [  Ch.  I 

equally  adapted  to  all  motives  and  all  decisions,  whence 
the  most  contradictory  actions  may  spring,  this  power, 
ambiguous  and  indeterminate  in  itself  (at  least  on  cer- 
tain points),  which  creates  out  of   nothing   conflicting 
motives  and  volitions,  and  which  originates  them  arbi- 
trarily by  an  incomprehensible  fiat,   contains  nothing 
in  itself  which  determines  respect  more  than  any  other 
sentiment.     Essentially  indifferent,  even  when  the  mo- 
tives which  it  creates  for  itself  are  different  one  from 
another,  this  will  leaves  my  own  will  indifferent  to  it 
so  long  as  it  does  not  act.     When  it  does  act,  I  profit 
by  the  action  if  it  favors  my  interests,  or  I  try  to  hinder 
it  if  it  opposes  them;  but  in  any  case,  the  moral  idea 
of  right  is  inapplicable.     The  right  and  the  arbitrary, 
the  right  and    an   uncaused   beginning  —  these    ideas 
are  mutually  exclusive.     That  royal  dictum,  "Such  is 
our  good   pleasure,"  cannot  make  inviolable  him  who 
pronounces    it.     From    the    principle,    "I    have    equal 
power  to  do  a  thing  or  its  opposite,  to  afiirm  a  thing  or 
its  contrary,"  we  cannot  conclude:   "My  power  to  do  a 
thing  or  its  opposite  is  a  right,  and  it  must  be  respected." 
§110.     Free  Will  an  Inadequate  Basis  for  Law.     It  will 
be  said  that  this  free  will,  this  absolute  power  to  realize 
contraries,  is  the  basis  of  law  for  the  person  possessing 
it,  because  it  distinguishes  him  from  every  other  being, 
from  things  and  from  animals  for  example,  which  can 
act  only  as  circumstances  determine;  free  will,  being 
superior  to  all,  makes  man  himself  superior  to  all  else. 
But  why,  we  ask  in  turn,  should  this  kind  of  freedom  be 
superior  to  all  else?     Once  again,  why  does  indeter- 
minateness,  wherever  it  may  reside,  whether  in  deliber- 
ation or  decision,  in  judgment,  passion,  or  action,  con- 
stitute   an    advantage    over    determinateness?     If    the 
absolute  power  to  originate  contraries  is  the  highest 
thing  conceivable,   superior  to  all  others,  it  might  be 


§110]    THE  IDEA  BASED  ON  FREE  WILL       157 

said  that  this  absolute  creative  power  is  the  essence  of 
good  itself;  for  if  any  good  should  be  superior  to  it,  then 
it  would  no  longer  be  absolute  or  supreme.  Hence 
whatever  it  does,  it  will  always  be  the  good,  and  all  its 
acts,  being  alike  the  product  of  one  absolute  power,  will 
be  good,  will  be  just,  will  be  conformable  to  law.  If, 
on  the  other  hand,  it  be  said  that  absolute  power  to 
realize  contraries  has  a  mandate  to  follow,  and  that 
according  to  the  choice  which  it  makes  it  merits  praise 
or  blame,  this  presupposes  something  higher  than  this 
power,  a  higher  good,  an  external  imperative  imposed 
upon  it;  therefore  it  is  no  longer  the  supreme  principle; 
that  higher  mandate,  then,  and  not  the  capacity  for 
contraries,  will  be  the  basis  of  law.  Moreover,  this 
power  will  not  support,  as  appeared  at  first,  the  respon- 
sibility which  it  is  sought  to  lay  upon  it,  the  merit  or 
demerit  which  it  is  desired  to  establish.  In  fact,  merit 
and  responsibility  presuppose  imputability,  and  this 
presupposes  a  certain  bond  between  actions  and  the  ego 
which  performs  them.  If  a  certain  action  or  its  motive 
arises  from  the  obscure  indeterminate  depths  of  one's 
being,  from  which  contrary  action  might  have  issued 
quite  as  well,  as  the  lightning  fîash  leaps  unforeseen  from 
the  cloud,  if  the  action  begins  absolutely,  without  being 
joined  at  all  points  to  the  ego,  without  being  adequately 
related  to  its  antecedents,  what  bond  can  there  be 
between  the  being  and  the  action?  How  can  we  at- 
tribute to  the  being  himself  the  merit  of  an  action  which  is 
in  a  sense  detached  from  him,  which  certainly  is  not  a 
consequence  of  his  character,  which  is  like  an  absolute 
accident,  a  "clinamen,"  and  not  an  essential  mark  of 
his  qualities?  Free  will,  in  so  far  as  it  is  power  to  judge 
or  to  do  either  a  thing  or  its  opposite,  cannot  be  dis- 
tinguished from  chance,  as  Epicurus  saw  very  clearly; 
but  chance  is  no  foundation  for  imputability  or  merit. 


158  ALFRED  FOUILLÉE  [  Ch.  i 

§  IIL  Paradoxical  Conclusions.  But  this  is  not  all. 
If  free  will,  the  power  to  choose  between  contraries,  is 
the  highest  of  all  things,  virtue,  which  diminishes  that 
power,  is  of  no  greater  value  than  vice,  which  reduces 
it  also.  Does  not  a  virtuous  man  deprive  himself  of 
the  power  to  choose  between  good  and  evil?  Does  he 
not  become  incapable  of  committing  a  murder,  a  theft, 
an  infamous  crime?  He  increases  the  share  of  deter- 
mination in  his  will  at  the  expense  of  indétermination; 
hence  he  diminishes  his  absolute  freedom  to  realize 
contraries,  and  if  this  liberty  is  the  good,  the  right,  the 
object  of  supreme  respect,  the  virtue  which  diminishes 
it  is  a  vice.  Freedom  issues  forth  from  that  indétermin- 
ation and  that  mystery  behind  which  it  was  veiled  at 
first  like  a  divinity  in  the  temple;  it  takes  on  a  definite 
form  and  figure;  it  assumes  a  character,  and  distinct, 
and  to  a  certain  degree  human,  features.  It  is  no  longer 
a  divinity;  it  has  declined  from  the  absolute  and  de- 
scended to  the  relative.  It  is  no  longer  superior  to  the 
understanding  and,  as  Plato  said,  to  the  essence;  it  takes 
on  a  definable  essence  and  specific  qualities;  hence  it 
is  no  longer  the  absolute  free  will. 

§  112.  Further  Limitations  of  the  Doctrine.  We  see 
that  free  will,  which  can  act  alike  with  reason  or  against 
reason,  does  not  seem  to  confer  upon  us  any  greater  in- 
violability than  if  we  were  constrained  by  necessity  to 
the  best  or  the  most  useful.  If  we  regard  free  will  as 
the  highest  possible  object  of  our  pursuit,  it  is  in  its 
indeterminateness  that  we  find  the  supreme  goal  and  the 
law  which  is  derived  from  it.  If  we  are  content  to 
regard  free  will  as  a  means,  we  give  way,  voluntarily 
or  involuntarily,  to  the  theocratic  doctrine,  with  its  dis- 
trust of  freedom  as  the  instrument  of  evil  as  well  as  of 
good,  the  origin  of  sin  and  of  the  contagion  of  sin  —  a 
doctrine  which  must  lead  to  the  suppression  of  human 


§112]    THE  IDEA  BASED  ON  FREE  WILL        159 

rights,  since  man's  free  will  is  worthy  of  respect  only  as 
it  conforms  to  the  will  of  God. 

§  113.  Scientific  Objections  to  Free  Will.  Aside  from 
the  fact  that  freedom,  reduced  to  free  will,  scarcely 
seems  a  fit  foundation  for  a  really  absolute  right  of  man  to 
the  respect  of  his  fellows,  it  is  also  open  on  its  own  account 
to  all  the  objections  of  scientific  and  Positivistic  minds. 
How  can  we  admit  a  free  will  in  contradiction  to  the 
laws  of  science  and  of  nature,  by  which  a  universal 
determinism  is  presupposed  and  verified  progressively? 
Such  a  free  will  would  be  at  once  a  mystery  of  the  reason 
and  a  scandal  of  nature.  Even  from  the  point  of  view 
of  pure  psychology,  how  can  we  prove  that  at  the  very 
moment  when  we  make  a  resolution,  we  might  resolve 
to  the  contrary,  since  in  fact  experience  shows  us  only 
one  complete  action  and  not  two?^  Cannot  the  inner 
feeling,  which  the  Spiritualists  invoke,  be  explained  as 
an  internal  optical  illusion?  Above  all,  how  can  we 
maintain  the  psychological  paradox  of  the  equality  of 
free  will  in  all  mankind?  If,  as  Victor  Cousin  and  his 
successors  believe,  that  is  the  real  foundation  of  social 
equality,  is  not  this  latter  greatly  compromised  in  the 
light  of  experience,  which  shows  us  so  many  gradations 
in  the  energy  of  the  human  will,  in  self-possession,  in 
moral  freedom,  and  therefore  so  much  actual  inequality 
among  supposedly  equal  personalities?  Reduced  to 
such  vague  generalities  about  liberty  and  dignity,  the 
Spiritualistic  doctrine  cannot  satisfy  rigorous  minds. 

§  114.  The  Difficulties  Summarized.  Such  are  some 
of  the  principal  difficulties  to  which  this  doctrine  is 
exposed,  to  a  mere  outline  of  which  we  have  confined 
ourselves.  They  may  be  summed  up  in  the  following 
dilemma:  If  free  will  by  itself  constitutes  the  right,  not 
to  mention  the  good,  since  free  will  is  in  its  nature  in- 
'  See  "La  Liberté  et  le  Déterminisme,"  2d  edition. 


160  ALFRED  FOUILLÉE  [  Ch.  I 

determinate  and  capable  of  all  contraries,  man  finds  him- 
self right  in  everything,  with  a  right  to  everything, 
whatever  he  may  do,  and  there  is  no  reason  for  limiting 
his  free  will  by  his  respect  for  others.  I  am  absolutely 
free  to  realize  contraries,  and  you  are  also  absolutely 
free;  why  should  I  place  a  limit  on  my  action  in  the  in- 
terest of  yours?  Absolute  and  equal  in  our  inner  powers, 
limited  and  unequal  in  our  outer  forces,  we  strive  to- 
gether like  two  absolute  kings  who  find  themselves  rivals, 
and  the  right  which  prevails  is  simply  that  of  the  stronger. 
If,  on  the  other  hand,  free  will  is  esteemed  not  for  its 
indétermination  but  for  the  determination  with  which 
it  is  invested,  it  is  worthy  of  respect  only  by  reason  of 
a  certain  good  which  is  at  once  its  object  and  the  object 
of  other  men.  It  is  hence  this  object  only  which  is  abso- 
lutely sacred  and  worthy  of  respect,  this  alone  which 
constitutes  law;  the  free  will  of  man  can  no  longer  be 
respected  for  itself,  but  only  as  it  contributes  to  a  realiz- 
ation of  the  good.  How,  then,  can  we  still  maintain  that 
man  has  rights  by  virtue  of  his  being  man  and  of  his 
being  free?  We  can  no  longer  say  that  by  himself  man 
has  any  right.  Since  free  will  is  only  a  means  which 
often  turns  against  its  object,  it  can  be  legitimately 
guided  to  its  end  by  any  path,  as  is  taught,  indeed,  by 
the  Catholic  and  authoritarian  schools:  the  end  will 
justify  the  means.  One  can  and  should  restrict  his 
freedom  when  necessary  to  his  own  good  or  to  the  good 
of  others,  without  conceding  to  it  the  prerogative  of 
absolute  respect  which  Spiritualism  claims  for  it  under 
the  name  of  law. 

In  short,  either  free  will  is  indétermination  pure  and 
simple,  and  on  that  ground  absolutely  worthy  of  respect, 
in  which  case  every  action  is  good  and  just,  and  there  is 
no  such  thing  as  morality  or  law;  or  else  free  will  bows 
to  a  higher  mandate  which  must  determine  its  direction, 


§  114  ]    THE  IDEA  BASED  ON  FREE  WILL       161 

in  which  case  it  may  choose  evil  and  cannot  deserve  our 
absolute  respect. 

§  115.  The  Error  of  Complete  Renunciation  of  Free 
Will.  Thus  the  idea  of  freedom  commonly  held  by  the 
Spiritualist  school  seems  more  fitted  to  suppress  the  law 
admitted  by  them  than  to  establish  it.  On  the  other 
hand,  the  absolute  fatalism  of  the  Positivists  is  scarcely 
reconcilable  with  the  idea  of  "rights  of  man."  We 
have  seen  with  what  logical  acumen  Auguste  Comte  re- 
jected both  the  idea  of  legal  right  and  the  idea  of  cause. 
If,  indeed,  a  being  is  fatally  ruled  by  forces  foreign 
to  himself,  with  no  active  or  causal  participation  by 
his  personality,  without  his  being  himself  in  any  measure 
a  force  or  a  factor  in  his  own  destiny,  this  being  rises 
and  falls  passively  in  the  moral  medium,  higher  or 
lower  according  to  a  rule  analagous  to  the  principle  of 
Archimedes,  as  a  body  rises  or  falls  in  the  air  according 
to  the  expansive  force  which  sustains  it.  It  is  difficult 
to  see  what  he  would  have  in  himself  to  give  him  a 
worth  of  his  own,  what  that  could  impart  "dignity"  to 
him  or  confer  upon  him  a  personal  right.  So  understood, 
the  human  will  loses  the  intrinsic  value  commonly 
ascribed  to  it;  the  social  problem  becomes  a  complex 
calculation  of  forces  and  interests,  and  the  conception  of 
law  is  reduced  in  all  particulars  to  a  mere  metaphysical 
or  theological  "illusion." 

§  116.  Contradictory  Views  to  be  Reconciled.  Thus 
the  study  of  the  foundations  of  law  brings  us  finally  to 
a  kind  of  antinomy.  On  the  one  hand  we  do  not  see  how 
a  being  without  any  kind  of  moral  freedom  can  have 
rights  properly  so-called;  on  the  other,  we  do  not  see 
how  freedom,  at  least  as  it  is  ordinarily  understood  by  the 
Spiritualist  school,  can  confer  any  rights.  Hence  if 
the  philosophy  of  "moral  law"  is  to  be  maintained,  in 
so  far  as  it  is  plausible,  against  adverse  doctrines,  it  must 


162  ALFRED  FOUILLÉE  [  Ch.  I 

explain  more  precisely  what  it  means  by  freedom,  and 
must  find  a  conception  of  it  distinct  from  indifference 
of  will  and  from  fatalistic  necessity. 

§  117.  The  Subject  Further  Outlined.  We  are  thus 
led  to  examine  three  closely  related  questions.  First, 
Is  the  law  which  is  founded  on  moral  freedom  a  reality 
and  truly  a  "natural"  law?  Second,  If  it  is  not  a  reaHty, 
is  it  at  least  an  ideal?  Third,  If  it  is  an  ideal,  is  it 
realizable}  We  shall  inquire  later  whether  the  doctrine 
of  ideal  law,  when  it  is  once  rectified  and  taken  in  a  more 
scientific  as  well  as  a  more  metaphysical  sense,  may  not 
be  reconciled  with  that  which  is  true  in  the  doctrines  of 
higher  power  and  higher  interest. 


§  118  ]   THE  TRUE  SIDE  OF  NATURALISM       163 


CHAPTER  II 

THE  TRUE  SIDE  OF  NATURALISM  —  CRITIQUE 
OF  THE  CONCEPTION  OF  LAW  AS  SOME- 
THING IN  THE  ORDER  OF  NATURE 

SPIRITUALISM  AN  INCONSISTENT  DOCTRINE  —  THE 
BASIS  OF  NATURAL  LAW  — THE  IMMEASURABLE  QUAL- 
ITY OF  NATURAL  RIGHTS  —  NATURAL  RIGHTS  ARE  NOT 
REAL,  BUT  IDEAL  —  NATURAL  RIGHTS  TRACED  BACK 
TO  MORAL  FREEDOM  — IS  NATURALISM  ADEQUATE  FOR 
OUR   PHILOSOPHY  OF  LAW? 

§  118,  Spiritualism  an  Inconsistent  Doctrine.  Not- 
withstanding the  stress  which  traditional  Spiritualism 
has  often  laid  upon  common  sense,  its  view  of  law  is  so 
far  from  common  that  it  is  even  paradoxical  on  more 
than  one  point.  Basing  what  it  calls  natural  law  on  an 
"absolute  respect  for  free  will,"  it  exalts  the  human 
being  to  a  rank  conferred  upon  him  by  no  other  doctrine. 
What  it  precisely  fails  to  do  is  to  justify  this  act  in  the 
name  of  that  nature  which  it  invokes. 

§  119.  Tlie  Basis  of  Natural  Law.  The  jurists  of 
former  times  were  wont  to  say  of  their  sovereign  —  king, 
emperor,  or  god  —  "He  is  the  living  law."  According 
to  Spiritualism  they  ought  now  to  say  of  any  and  every 
man,  "He  is  the  living  right."  Herein  Spiritualism  is 
inspired  by  Kant;  he,  on  the  other  hand,  merely  para- 
phrased Rousseau  and  the  French  Revolution  when  he 
said,  "Man  is  an  end  in  himself."  Man  must  indeed 
hold  this  high  place  in  nature,  say  the  Spiritualists,  for 
it  is  only  thus  that  his  "inviolability"  can  be  realized: 


164  ALFRED  FOUILLÉE  [  Ch.  Il 

a  being  is  inviolable  only  as  his  nature  is  opposed  to  his 
being  made,  either  by  ruse  or  violence,  to  serve  as  an 
instrument  for  an  ulterior  end.  Thus  only  can  man  be 
really  entitled  to  "respect";  for  respect  is  a  sentiment 
aroused  in  us  by  the  idea  of  one  who  by  his  very  nature 
cannot  be  subjected  to  a  higher  power,  and  so  remains 
master  of  himself.  The  philosophers  and  the  legis- 
lators of  the  French  Revolution  distinguished  more  or 
less  clearly  these  features  of  "natural"  law,  with  the 
consequences  which  they  entailed,  and  this  is  why  they 
taught  that  natural  rights  are  absolute  and  inalienable. 
A  natural  right  which  could  be  alienated  or  annulled 
to  the  advantage  of  some  higher  principle  would  have 
been,  in  their  eyes,  only  a  provisional  and  conditional 
right,  a  permission  or  a  tolerance,  in  short  a  favor. 
Mirabeau  wished  to  banish  the  very  word  "tolerance" 
from  the  vocabulary  of  law,  and  was  indignant  (not 
without  reason)  at  the  endless  discussion  of  "religious 
tolerance,"  since  the  favor  granted  one  day  might  be 
withdrawn  the  next.  The  idea  of  a  tolerated  right  is 
as  self-contradictory  as  that  of  "conceded  liberties," 
from  v/hich,  moreover,  it  is  scarcely  to  be  distinguished. 
The  charter  of  conscience  and  nature  should  not  be  the 
gift  of  a  sovereign,  but  the  natural  property  of  every 
man. 

§  120.  The  Immeasurable  Quality  of  Natural  Rights. 
Thus  we  see  that  natural  rights,  with  all  the  attributes 
which  the  Spiritualists  attach  to  them,  are  something 
incomparable  in  nature,  and  consequently  priceless  and 
inestimable.  Suppose  that  we  have  on  one  side  of  the 
symbolic  scales  of  justice  an  individual,  armed  with 
what  to  the  Spiritualistic  school  is  one  of  his  most  obvious 
natural  rights,  that  of  not  being  put  to  death  if  he  has 
committed  no  crime:  if  that  is  truly  a  right  from  the 
point  of  view  of  nature,  and  not  merely  a  matter  of 


§120]    THE  TRUE  SIDE  OF  NATURALISM        165 

tolerance  or  a  factitious  privilege,  it  will  be  vain  to 
heap  up  in  the  opposite  scale  forces  and  interests  —  the 
forces  and  the  interests  of  two  men,  of  a  hundred  men, 
of  forty  million  men  —  so  long  as  you  do  not  put  into 
the  second  scale  the  idea  of  another  natural  right  equal 
to  the  first.  Whatever  the  weight  of  your  forces  and 
your  interests,  the  balance  of  justice  will  remain  steady, 
immovable,  fixed  by  the  natural  right  of  a  single  being 
against  the  forces  and  the  interests  of  all.  Nothing 
which  can  be  valued  mathematically  can  be  equivalent 
to  the  idea  of  rights  as  expressed  by  the  philosophy 
which  sprang  from  the  French  Revolution  —  rights  which, 
if  they  exist  at  all,  are  absolute,  and  superior  to  any 
quantitative  measurement,  but  which  it  nevertheless 
calls  natural.  If  we  could  be  sure  that  we  had  by  nature 
a  right  of  this  description  within  us,  we  should  be  sure 
that  we  bore  within  our  consciences  a  power  incom- 
mensurable with  any  other,  and  which  could  find  its 
counterpoise  only  in  another  right  naturally  equal  to 
itself. 

§  121.  Natural  Rights  are  not  Real,  but  Ideal.  Thus 
understood,  is  a  right  a  reality  or  an  ideal,  and  does  it 
deserve  the  name  of  natural  right  which  has  been  given 
it?  There  are  many  opposing  reasons.  To  raise  the 
actual  nature  of  man  above  all  possible  comparison  with 
any  forces  or  interests,  however  great,  is  to  attribute 
to  him  nothing  less  than  a  kind  of  real  infinity;  but 
infinity  is  to  us  an  idea,  not  a  reality  of  experience 
observable  in  the  order  of  nature.  To  confer  upon  man, 
in  the  name  of  his  nature,  unconditional  independence 
and  inviolability  so  long  as  his  will  does  not  encroach 
upon  that  of  others,  is  rightly  or  wrongly  to  give  to 
him  a  character  of  the  absolute;  but  again,  the  absolute 
is  to  us  not  a  natural  reahty,  but  an  idea.  Moreover, 
to  have  a  genuine  natural  right,  man  must  be  not  only 


166  ALFRED  FOUILLÉE  [Ch.II 

an  end,  but  also,  as  Auguste  Comte  saw  very  clearly,  a 
self-acting  cause;  now  these  ideas  of  end  and  cause 
are  most  difficult  to  establish  in  the  order  of  nature  — 
they  resemble  the  horizon  line  which  the  child  ever 
hopes  to  reach  but  which  flees  before  him  as  he  advances. 
It  has  been  said  that  the  cause  truly  endowed  with 
initiative  is  free  will;  according  to  Pascal,  this  is  what 
naturally  gives  to  man  "the  dignity  of  causality." 
But  as  we  have  shown  in  the  preceding  chapter,  free 
will  is  reduced,  psychologically  and  naturally,  to  a  play 
of  motives  in  which  indeterminateness  is  only  apparent, 
and  in  which  determinateness  is  real.  Indétermination 
is,  like  chance,  a  word  with  which  we  cover  our  ignorance 
of  natural  determinism.  As  to  freedom,  understood 
in  a  wider  sense  as  the  independence  of  man  in  his  actions, 
where  shall  we  lay  hold  of  it  in  Jact,  where  demonstrate 
it  as  a  reality!  Is  it  anything  other  than  an  idea,  an 
ideal?  Is  the  ego  itself,  the  individuality,  the  person- 
ality, the  final  basis  of  natural  rights  according  to  the 
Spiritualists,  anything  else  in  experience  than  a  simple 
form  of  consciousness,  an  aspect  which  we  present  to 
ourselves,  an  idea  which  constantly  accompanies  all  our 
other  ideas  and  in  which  these  come  together,  like  light 
rays  in  certain  mirrors,  in  a  purely  potential  focus?  An 
absolutely  simple  individuality,  absolutely  identical  with 
itself,  is  unrealizable  in  nature.  Here  again,  the  absolute 
eludes  our  grasp  as  a  reality  ;  we  conceive  it  by  reflection, 
we  cannot  lay  hold  of  it  in  experience. — This  is  the  strong 
side  of  naturalism,  and  these  are  the  serious  objections 
which  it  can  bring,  from  its  point  of  view,  against  the 
reality  of  a  right  which  is  both  absolute  and  natural. 

§  122.  Natural  Rights  Traced  Back  to  Moral  Freedom. 
We  believe,  then,  that  the  Spiritualist  philosophy  errs 
in  regarding  a  right  as  a  natural,  actual  thing,  as,  in  a 
sense,  a  fact  of  inner  experience.     Undoubtedly  natural- 


§  122  ]   THE  TRUE  SIDE  OF  NATURALISM       167 

ism  cannot  positively  prove  that  there  is  nothing  in  man 
beyond  pure  phenomena  and  their  succession  according 
to  the  uniformities  of  nature,  for  that  is  an  assertion 
concerning  objects  outside  the  bounds  of  positive  ex- 
perience; but  neither  can  SpirituaHsm  prove  that  this 
something  beyond  exists.  Even  if  it  does,  it  forms 
no  part  of  the  natural  order,  properly  so-called,  subject, 
as  that  is,  to  mechanical  principles.  The  door  stands 
open  here  to  metaphysical  hypotheses;  but  as  we  must 
not  confuse  hypotheses  with  facts,  exactness  requires 
that  we  give  to  each  thing  its  true  character.  So  we 
must  say  that  an  absolute  natural  right,  involving 
absolute  respect,  is  really  based  on  the  ideal  attributes 
of  man,  which,  from  the  scientific  point  of  view,  are 
wholly  hypothetical,  —  on  pure  ideas  to  which  the 
thought  of  man  may  rise,  but  whose  positive  reality  it 
cannot  verify.  And  all  these  ideas,  like  geometrical 
forms  which  are  reducible  to  elementary  figures,  are  at 
bottom  no  more  than  diverse  forms  of  the  one  ideal  of 
moral  freedom,  without  which  there  would  be  neither 
any  real  ego,  nor  any  individuality,  nor  true,  infinite,  or 
absolute  causality,  and  therefore  no  absolute  inviola- 
bility nor  any  right  properly  so-called.  Now  freedom 
is  so  far  from  nature  that  it  seems  the  very  opposite. 
Kantian  morality  implies  a  mode  of  existence  and  of 
metaphysical  activity  which  does  not  seem  a  natural 
mode,  physical  or  psychical.  An  absolute  right,  con- 
sequently, cannot  be  natural,  nor  can  it  be  founded  on 
nature  as  observable  by  man,  nor  on  such  of  its  char- 
acters as  are  scientifically  determinable.  From  the 
standpoint  of  pure  nature  and  of  pure  positive  science, 
combinations  of  forces  and  interests,  transformations 
of  egoistic  or  altruistic  instincts,  and  evolutions  of  the 
individual  or  social  organism  may  be  invoked,  but 
nothing  that  is  in  and  of  itself  inviolable. 


168  ALFRED  FOUILLÉE  [Ch.  II 

§  123.  Is  Naturalism  Adequate  for  our  Philosophy 
of  Law?  Shall  it  be  said  that  we  must  simply  accept  in 
our  philosophy  of  law,  a  pure  naturalism,  which  denies 
the  existence  of  any  veritable  right,  even  ideal  or  meta- 
physical? We  have  just  seen,  beyond  a  doubt,  that 
such  a  system  expresses  a  part  of  the  truth,  but  is  it 
the  complete  truth?  It  affords  a  firm  scientific  foun- 
dation for  the  philosophical  edifice,  but  may  not  the 
edifice  itself  rise  into  loftier  regions? 


§124]       THE  TRUE  SIDE  OF  IDEALISM  169 


CHAPTER   III 

THE   TRUE   SIDE   OF   IDEALISM  —  LAW   CON- 
CEIVED  AS   BELONGING   TO 
THE    IDEAL    ORDER 

ESSENTIAL  RELATIONS  OF  NATURALISM  AND  IDEAL- 
ISM—THE DEPENDENCE  OF  THE  PRACTICAL  ON  THE 
IDEAL  —  EXTERNAL  FREEDOM  —  INTERNAL  FREEDOM  — 
THE  WILL  AS  THE  SOURCE  OF  MORAL  GOOD  —  MORAL 
FREEDOM  IDENTIFIED  AS  THE  WILL  —  THE  OBJECT  OF 
TRUE  LIBERTY  IS  NOT  EVIL.  BUT  GOOD  —  INTERRELA- 
TION OF  RIGHTS  AND  FREEDOM  —  AN  UNSOLVED  PROB- 
LEM. 

§  124.  Essential  Relations  of  Naturalism  and  Ideal- 
ism. The  exclusively  materialistic  type  of  naturalism 
would  dispense  with  ideas  of  freedom,  personality,  right, 
and  inviolability,  showing  by  reasons  more  or  less 
analogous  to  the  foregoing  that  they  do  not  express 
either  observable  facts  or  natural  laws;  yet  if  these 
things  do  not  exist  as  realities  in  nature,  they  have  none 
the  less  from  the  very  first  an  existence  as  ideas  in  our 
minds,  a  mode  of  existence  which  can  scarcely  be  set 
aside  as  of  no  value.  No,  ideas  are  thoughts,  and 
thoughts  are  not  unimportant  factors  which  we  may  dis- 
regard, particularly  when  they  are  those  that  dominate 
and  control  mankind.  For  a  crude  materialism,  every- 
thing which  is  not  a  reality  is  for  that  reason  a  mere 
chimera;  but,  we  may  reply,  what  is  not  a  reality  may 
be  an  ideal.  A  chimera  is  sterile,  like  those  monsters 
which,   although   they  were   born   themselves,   cannot 


170  ALFRED  FOUILLÉE  [  Ch.  Ill 

bring  forth  progeny;  the  ideal  is  fecund,  like  those 
creative  conceptions  of  the  poet,  the  artist,  or  the  phil- 
osopher, which  can  give  rise  to  a  new  world  of  ideas, 
feelings,  and  desires.  The  chimera  cannot  be  realized; 
the  ideal  is  progressively  capable  of  realization.  The 
one  is  opposed  to  nature,  the  other  in  accord  with  it; 
the  one  is  false,  the  other  true.  The  domain  of  ideas 
is  the  legitimate  sphere  of  idealism,  which  by  no 
means  excludes  naturalism,  rightly  understood,  but  which 
finishes  and  completes  it,  just  as  thought  does  not  ex- 
clude matter,  but  illumines,  penetrates,  and  transforms 
it.  So  we  must  build  up  a  kind  of  idealism  on  the  very 
foundations  of  naturalism,  and  strive  to  unite  the  two; 
and  we  shall  not  go  beyond  the  bounds  of  true  naturalism 
in  so  doing.  To  study  ideas  is  to  analyze  the  forms  of 
human  thought,  to  determine  its  essential  directions, 
and  to  discover  the  laws  of  its  evolution;  thought,  too, 
is  a  part  of  nature,  even  though  thought  reaches  beyond 
nature,  or  rather,  rises  above  it  to  the  conception  of  a 
higher  nature. 

§  125.  The  Dependence  of  the  Practical  on  the  Ideal. 
Social  and  political  science,  more  than  any  other,  ought 
to  take  account  of  the  ideal,  both  in  its  principles  and 
in  its  applications.  Social  science,  to  be  sure,  tends 
toward  practice,  but  there  is  nothing  practical  without 
the  ideal;  an  intelligent  being  cannot  do  anything 
without  asking  himself  what  better  thing  he  might  do. 
Furthermore,  the  value  of  practice  depends  on  the 
elevation  of  the  idea.  Inthat  way  lies  the  truth;  therein 
lie  the  strength  and  the  grandeur  of  French  politics  and 
law-giving,  judged  by  their  principles  if  not  by  their 
applications.  Our  nation  has  always  been  ambitious 
to  realize  the  best;  it  has  always  wished  its  laws  and  its 
politics  to  conform  to  the  loftiest  ideas  that  the  mind 
can  conceive.     While  recognizing  the  excesses  of  this 


§125]       THE  TRUE  SIDE  OF  IDEALISM  171 

tendency,  we  are  not  among  those  who,  like  Taine, 
consider  it  a  reproach.  A  body  of  civil  law,  or  a  political 
constitution,  should  be  fitted  not  only  to  reality,  but 
also  to  the  ideal.  This  is  what  the  pure  naturalists  and 
the  historical  school  ignore  in  their  criticisms,  in  part 
just,  of  our  national  method.  The  consideration  of  the 
ideal  is  as  indispensable  to  the  jurist  and  the  politician 
as  the  study  of  pure  geometry  is  to  the  mechanician, 
even  though  there  may  be  no  such  things  in  nature  as 
a  perfect  circle,  or  a  perfect  triangle,  or  even  a  really 
straight  line.  Hence  a  correct  method  requires  us  to 
consider  this  question:  If  right  and  freedom  are  not 
real  experiences  or  deductions  from  facts,  are  they  not 
at  least  legitimate  ideals?  In  other  words,  does  not  the 
perfection  of  society  consist  in  the  realization  of  all 
possible  good  through  the  voluntary  efforts  of  its  mem- 
bers, and  should  not  each  individual  will  for  that  reason 
be  allowed  the  outer  and  inner  freedom  which  constitutes 
the  right? 

§  126.  External  Freedom.  Let  us  consider  first  ex- 
ternal freedom.  It  is  certain  that  whatever  good  is 
realized  voluntarily,  without  external  constraint,  is  in 
all  respects  superior  to  that  realized  under  compulsion. 
The  reasons  for  this  are  numerous.  In  the  first  place, 
there  is  its  greater  intensity;  it  is  a  power  which  no 
resistance  weakens,  like  a  river  whose  bed  and  banks, 
instead  of  obstructing  its  course,  lead  its  waters  onward 
by  an  irresistible  downward  slope.  It  is  also  more  lasting. 
Are  not  the  things  that  a  sudden  spring  meets,  lessening 
the  duration  of  its  flight,  obstacles  like  the  resistance  of 
the  air  to  the  motion  of  a  projectile?  Every  com- 
pulsion has  only  a  temporary  and  provisory  character; 
it  exhausts  itself  in  the  long  run  because  it  acts  from 
without,  while  will  acts  from  within.  It  is  this  which 
causes  the  final  impotence  of  all  despotisms.     Perpetual 


172  ALFRED  FOUILLÉE  [Ch.  Ill 

motion  is  sought  in  the  social  order,  as  it  has  been  sought 
in  the  physical;  but  what  is  a  chimera  for  our  lifeless 
mechanisms  is  realized  in  life.  There  is  perpetual  motion 
in  that  power  which  Rousseau  made  the  ideal  principle 
of  all  human  association  and  the  motive  force  of  all 
human  progress,  namely,  the  will  ;  for  the  will,  convinced, 
persuaded,  and  captivated  by  its  object,  persists,  as 
long  as  it  endures,  in  that  activity  in  which  it  finds  its 
complete  satisfaction. — To  intensity  and  duration  we 
may  add  a  third  characteristic,  variety  of  effect;  that  is, 
richness  and  fecundity.  External  constraint  is  a  uniform 
force,  applied  always  at  the  same  point;  the  will,  on 
the  contrary,  is  complex  and  diversified,  because  it  is 
perfectible  and  grows  in  all  directions.  Furthermore, 
if  voluntary  good  is  superior  to  the  others  in  quantity, 
it  is  no  less  so  in  quality,  because  it  alone  is  conscious, 
felt,  and  loved.  A  good  of  which  we  were  unconscious 
would  not  exist  for  us,  and  would  be  therefore  inferior. 
The  freedom  conceded  to  the  will  creates  conscience; 
constraint,  on  the  contrary,  exercised  on  the  body  tends  to 
give  nature  predominance  over  thought.  Hence  French 
philosophy  has  been  right  in  representing  written  law, 
a  formula  of  the  general  good,  as  necessarily  an  expression 
of  the  general  conscience.  A  nation  worthy  of  the  name 
is  a  voluntary  union  of  consciences,  not  a  forced  aggre- 
gation of  blind  and  passive  creatures.  Let  us  add  that 
voluntary  good,  desired  by  all,  is  also  the  only  kind 
which  may  be  loved  by  all.  Do  we  enjoy  what  we 
endure  in  spite  of  ourselves?  Do  we  like  the  violence 
which  binds  our  members  but  does  not  bind  the  heart? 
Voluntary  good  alone,  in  short,  produces  happiness; 
we  are  happy  only  when  we  have  that  which  we  love. 
Happiness  is  something  not  passively  endured,  which 
may  come  from  without,  and  enter  into  us  in  spite  of 
ourselves,    like   a   liquid   poured   into   a  vessel;  if   the 


§  126  ]       THE  TRUE  SIDE  OF  IDEALISM  173 

vessel  is  bitter,  it  renders  bitter  the  sweetest  cordial. 
To  make  a  man  or  a  nation  happy  against  the  will  of 
either  is  a  contradiction  and  a  chimera,  too  often  re- 
produced in  antiquity  and  in  our  own  day  by  the  author- 
itarians and  the  theologians,  by  all  those  who  would  be 
our  saviors  against  our  will.  From  the  standpoint 
of  naturalism,  the  most  perfect  machine  is  one  which 
always  has  its  own  motive  power  within  itself,  which 
has  the  least  need  of  the  continual  intervention  of  the 
operator,  which  can  even  dispense  with  him  altogether, 
which  can  run  itself,  repair  itself,  reconstruct  itself, 
adapt  itself  spontaneously  to  its  environment,  and 
perfect  itself  by  its  own  inner  energy.  Such  is  the  ideal 
which  human  society  should  pursue.  The  naturalists 
should  realize,  as  well  as  the  idealists,  that  the  good 
which  society  imposes  by  compulsion  is  a  lifeless  good, 
while  that  which  springs  up  within  the  bosom  of  the 
individual  is  a  living  good.  True  evolution,  with  in- 
telligent beings,  should  go  on  within,  should  not  be 
effected  by  external  means  which  produce  only  the 
superficial  and  the  apparent.  The  worthiest  man  is 
he  who  bears  within  himself,  so  far  as  possible,  the 
principle  of  his  own  evolution,  the  warrant  of  his  own 
worth  ;  and  the  same  is  true  of  the  worthiest  society. 

§  127.  Internal  Freedom.  After  having  thus  estab- 
lished the  superiority  of  the  good  which  is  attained 
without  compulsion,  we  have  a  second  step  to  take,  a 
second  premise  to  lay  down.  Is  it  enough  that  the  will 
should  be  independent  externally,  and  exempt  from  all 
outward  pressure?  If  it  is  to  approximate  the  ideal, 
must  it  not  be  also  internally  independent?  Now 
complete  inward  independence  would  be  what  we  know 
SiS freedom.  Spiritualistic  philosophy,  in  the  last  analysis, 
rests  its  idea  of  rights  on  this  inner  moral  freedom,  of 
which  external  freedom  is,  in  its  view,  only  the  mani- 


174  ALFRED  FOUILLÉE  [Ch.  Ill 

festation  and  the  guaranty.  But  here  again,  is  this 
a  just  conception  of  the  ideal? 

§  128.  The  Will  as  the  Source  of  Moral  Good.  We  feel 
that  it  is  necessary  to  concede  at  the  outset,  to  the 
partisans  of  freedom,  that  if  the  will  of  man  should 
attain  to  "moral  freedom,"  or  at  least  approximate  it 
as  closely  as  possible,  the  individual  would  have  within 
himself  a  higher  and  more  personal  value;  we  could 
justly  attribute  to  this  his  inner  perfection  and  his  good 
will  towards  others,  or,  in  a  word,  the  good  of  which 
he  was  himself  the  author.  Perfection  derived  from 
others  is  the  perfection  of  those  others,  who  alone  de- 
serve the  credit  for  it.  The  beauty  of  a  work  of  art 
belongs  to  the  artist,  and  it  is  in  his  thought  that  the 
true  beauty  dwells,  of  which  the  other  is  only  the  lifeless 
image.  Any  work  is  valuable  only  according  to  its 
form;  the  fundamental  value  is  in  the  worker  only. 
It  is  an  abuse  of  language  to  attribute  goodness  to 
material  things  which  are  subject  to  inexorable  laws. 
A  crystal  is  symmetrical,  regular,  unvarying;  it  is  not 
good.  It  is  the  will  which  makes  things  good  properly 
speaking  —  that  is,  morally  good.  Without  this,  there 
is  the  agreeable,  the  true  —  formal  beauty,  perhaps  — 
but  not  real  goodness.  This  is  what  constitutes  the 
absurdity  of  the  authoritarian  systems  that  affirm  a  moral 
good  imposed  by  authority  —  a  contradiction  in  terms. 

§  129.  Ideal  Freedom  Identified  as  the  Will.  But  it 
is  important  to  have  a  precise  conception  of  this  ideal 
of  freedom  which,  if  realized,  would  be  the  crowning 
achievement  of  human  nature  and  the  consecration  of 
our  right  to  respect  and  love.  Now,  as  we  have  seen, 
believers  in  a  freedom  of  indifference  which  acts  without 
motives,  or  in  what  amounts  to  the  same  thing,  the 
popular  notion  of  a  free  will  which  acts  contrary  to 
motives  or  arbitrarily  creates  them  for  itself,  cannot 


§129]       THE  TRUE  SIDE  OF  IDEALISM  175 

base  thereon  a  theory  of  rights  satisfactory  to  the  scienti- 
fic mind.  This  indeterminate  free  will,  apart  from  the 
fact  that  it  is  not  demonstrable,  could  not  constitute  the 
highest  ideal  of  the  will,  and  consequently  not  the  highest 
worth  of  man,  the  principle  of  his  rights.  Moreover, 
absolute  materiahsm  and  fatalism,  in  suppressing  every 
action  of  the  individual,  in  explaining  everything  from 
without  and  nothing  from  within,  end  in  suppressing 
activity  itself,  and  leave  no  personal  worth  to  the  in- 
dividual. Hence  we  should  conceive  ideal  freedom  as 
superior  both  to  fatality  and  to  indeterminateness.  As 
we  see  it,  this  ideal  liberty  does  not  consist  in  an  equal 
power  to  will  things  opposite,  does  not"  bring  into  life 
and  into  history,  along  with  an  ambiguous  possibility 
of  contraries,  an  element  of  inexplicable  chance.  Neither, 
on  the  other  hand,  does  it  admit,  as  the  fatalists  do,  the 
complete  passivity  of  every  being;  for  it  attributes  to  the 
being  an  action  of  his  own,  an  essential  tendency  which 
characterizes  him,  a  spontaneous  force  which  is  the 
measure  of  his  worth.  How,  then,  shall  we  conceive 
this  force?  As  a  kind  of  miracle  of  nature,  or  rather, 
outside  of  nature?  Can  we  not  form  an  idea  of  it  con- 
sistent with  the  determinism  of  nature  itself?  Without 
entering  here  upon  too  long  a  discussion,  let  us  merely 
say  that  the  meaning  of  the  word  "Hberty"  has  been  di- 
verted from  its  early  etymology  by  metaphysicians  and 
theologians.  "Liberty"  signifies  m(/e^ewf/e«ce.  Now  the 
Schoolmen  and  the  modern  psychologists  have  limited 
it  to  free  will,  properly  so-called  —  to  the  power  of  real- 
izing contraries,  which,  if  it  be  such  as  they  imagine  it, 
would  be  only  a  special  form  of  freedom,  and,  as  Des- 
cartes said,  its  lowest  degree.  But  free  will,  apparent 
or  real,  is  valuable  to  us  only  as  it  enables  us  to  enlarge 
our  independence;  and  it  is  precisely  independence 
which,  to  our  mind,  constitutes  true  liberty.     Negatively 


176  ALFRED  FOUILLÉE  [  Ch.  m 

taken,  the  word  "liberty"  means  the  absence  of  all  external 
constraint;  positively,  it  means  in  the  first  place  the 
presence  of  a  self-acting  force,  the  plenitude  of  spon- 
taneous, conscious  activity,  in  short  the  will;  hence 
ideal  freedom  ought  to  be  primarily  defined  as  inde- 
pendent will,  that  is,  will  dependent  upon  itself  alone. 

§  130.  The  Object  of  True  Liberty  is  Not  Evil,  but 
Good.  We  have  yet  to  learn  in  what  this  independence 
consists.  As  commonly  understood,  free  will  is  in- 
dependent of  all  persuasive  motives,  can  act  contrarily 
to  such  motives,  and  can  suddenly  create  for  itself  a 
motive  not  arising  from  the  laws  of  the  mind.  But  is 
capacity  to  act  uninfluenced  by  any  motive  what  really 
concerns  us?  No,  independence  of  all  motive  can  at 
most  be  only  apparent,  and  would  at  any  rate  be  useless. 
There  is  always,  in  fact,  a  hidden  motive  which  explains 
our  decision,  an  intellectual  or  emotional  determinism; 
and  even  if  there  were  no  motive,  an  arbitrary  and  in- 
explicable decision  would  be  without  value,  either  moral 
or  social.  What,  then,  is  the  truly  precious  thing? 
It  is  independence  of  inferior  and  external  motives,  of 
egoistic  and  material  motives;  for  these  motives  ex- 
press not  the  normal,  essential  direction  of  the  rational 
will,  but  a  deviation  caused  by  fatalities  of  external 
origin  —  they  are  servitudes.  True  liberty,  therefore, 
does  not  consist  essentially  and  ideally  in  power  to  do 
evil,  but  in  power  to  do  good;  its  essence  is  not  an 
abihty  to  fall,  but  the  ability  to  rise.  The  first  of  these 
powers  is  not  necessarily  and  in  everyone  a  condition 
of  the  second,  despite  the  common  prejudice  which  con- 
ceives these  things  only  as  contrasted;  for  evil  may  be 
the  result  of  external  compulsions,  of  physical  servitudes, 
necessities,  passions,  et  cetera,  while  good  may  be  the 
mere  release  of  our  true  and  proper  activities,  at  once 
kindly  and  inteUigent.     In  doing  evil,  the  will  would 


§130]       THE  TRUE  SIDE  OF  IDEALISM  177 

do  that  which  it  did  not  really  wish;  in  doing  good,  it 
would  do  what  it  really  preferred,  what  is  preferred  by 
other  wills,  by  the  universe;  and  that  would  be  a  de- 
liverance. Thus  we  can  construct  the  notion  of  an 
ideal  freedom,  of  a  tmiversal  will,  which  would  be  neither 
unmitigated  determinism  nor  the  vulgar  freedom  of 
indétermination.^ 

§  131.  Interrelation  of  Rights  and  Freedom.  It  is 
this  ideal  freedom  which  is  frequently  confounded  with 
ideal  right.  Indeed,  the  being  who  had  rights  in  the 
fullest  sense  of  the  word  would  be  the  being  who  de- 
pended only  on  himself  and  by  that  very  circumstance 
would  be  able  to  do  as  he  liked  in  regard  to  others. 
This  is,  indeed,  quite  the  common  view.  When  we 
wish  to  assert  our  rights,  we  say,  "I  depend  on  no  one 
but  myself."  Right,  independence,  liberty,  are  then 
diverse  expressions  of  the  same  idea,  and  as  this  idea 
exists,  more  or  less  vaguely,  in  all  minds,  we  must  re- 
cognize that  it  has  value  at  least  as  a  supreme  object 
and  ideal  of  human  thought. 

'  The  popular  notion  of  free  will  implies  that,  in  some  way  or  at  some 
point,  the  will  is  indeterminate.  A  freedom  reconcilable  with  science, 
on  the  other  hand,  would  involve  a  determination  of  the  will,  becoming 
more  and  more  marked  and  more  and  more  certain,  a  determination  to 
higher  and  higher  ends  (family,  country,  humanity,  the  universe),  to 
motives  more  and  more  nearly  universal,  over  which  narrow,  egoistic 
motives  would  less  and  less  be  able  to  prevail.  The  free  man  is  one 
upon  whom  we  can  rely  more  and  more,  and  with  increasing  confidence. 
It  is  impossible  to  reconcile  vulgar  free  will  with  scientific  determinism; 
in  our  theory,  on  the  other  hand,  we  give  determinism  its  legitimate 
place,  and  even  treat  it,  as  will  presently  be  seen,  as  a  means  of  eman- 
cipation and  progress.  But,  it  may  be  asked,  how  could  freedom  be 
reconciled  with  a  determination  of  increasing  strength  in  a  given  direction? 
This  objection  comes  from  thinking  of  determination  as  essentially 
passive,  the  product  always  of  an  external  force;  but  the  true  determin- 
ation could  be  active,  produced  by  an  internal,  intelligent  force,  which 
would  surmount  obstacles,  would  become  more  and  more  self-conscious, 
and  would  dominate  all  else.  In  this  case  the  will  would  be  determined 
only  by  its  own  spontaneity.  Now  it  is  self-determination  which  con- 
stitutes the  ideal  liberty  ;  to  depend  on  oneself  alone  is  to  be  independent. 
However,  we  repeat,  this  is  only  an  ideal. 


178  ALFRED  FOUILLÉE  [  Ch.  III 

It  has  a  value,  indeed,  in  ail  its  possible  forms,  and 
in  ail  stages  of  its  possible  development.  The  ideal 
form  of  liberty  is  the  free  desire  for  the  universal  as  felt 
by  the  individual,  who,  although  wholly  self-dependent, 
would  nevertheless  devote  himself  to  the  good  of  all. 
This  ideal  is  evidently  the  highest  end  of  man  and  the 
supreme  object  of  human  desire.  As  a  means  to  its 
attainment,  we  conceive  a  power  not  yet  wholly  free, 
capable,  consequently,  of  contraries,  of  movement  in 
two  different  directions,  one  disinterested,  the  other 
egoistic.  This  second  kind  of  freedom  is  not,  in  itself, 
essential  to  the  first,  since  we  think  of  the  divine  ideal  as 
both  absolutely  free  and  absolutely  incapable  of  decline. 
The  power  to  do  wrong  is  nevertheless  the  actual,  in- 
ferior form  in  which  the  freedom  to  do  right  realizes 
itself.  As  the  universal  will,  which  is  the  good,  can  come 
only  from  within  the  being  himself,  and  not  from  without, 
it  follows  that  the  spontaneous  evolution  of  freedom, 
with  the  power  to  do  ill  together  with  the  power  to  do 
good,  is  the  practical  form  of  rights  among  men,  at  once 
fallible  and  perfectible  as  they  are. 

§  132.  An  Unsolved  Problem.  This  granted,  what 
more  is  there  to  say?  We  must  inquire  whether  freedom 
as  thus  understood,  and  the  ideal  right  derived  from  it, 
are  condemned  as  sterile  ideals  lost  in  the  imaginary 
void,  as  inactive  and  as  impotent  on  earth  as  the  gods 
of  Epicurus,  or  whether  they  may  be  realized  more  or 
less  completely.  The  problem  which  we  have  now  to 
solve  is,  therefore,  to  find  an  effective  and  observable  bond 
of  union  between  idealism  and  naturalism,  such  that  the 
ideal  may  descend  into  nature  itself,  transform  it  to  its 
own  image,  and  lift  it  up  to  itself. 


§  133  ]         THE  FORCE-IDEA  OF  RIGHT  179 


CHAPTER  IV 

SCIENTIFIC   RECONCILIATION   OF   NATURAL- 
ISM AND  IDEALISM  BY  MEANS  OF 
THE  FORCE-IDEA  OF  RIGHT 

THE  FORCE-IDEA  DEFINED  —  THE  SELF-REALIZATION 
OF  DESIRE  — THE  BASIS  OF  RIGHT  IN  A  UNIVERSAL 
END  — LIMITATIONS  OF  SPIRITUALISM  AND  NATURALISM 
—  GROUND  GAINED  FROM  THE  NATURALISTS  —  THE 
BASIS  OF  THE  THEORY  LAID  DOWN  —  THREE  PHASES 
IN  THE  EVOLUTION  OF  FREEDOM  —  INFINITY  OF  THE 
IDEAL  OF  RIGHT— RESPECT  FOR  THE  IDEAL  OF  RIGHT 
IS  DUE  TO  ITS  PROGRESSIVITY  —  MAN'S  IDEA  OF  THE 
RIGHT  A  BASIS  FOR  PRACTICAL  RIGHTS. 

§  133.  The  Force-Idea  Defined.  The  link  between 
naturalism  and  idealism,  the  means  by  which  the  ideal  is 
made  real,  we  believe  to  be  evolution,  which  being  here  con- 
scious, and  mindful  of  a  purpose,  may  be  called  progress. 
Only  we  think  of  this  evolution  in  a  particular  way. 
In  our  opinion  that  motive  power,  too  seldom  remarked, 
by  which  evolution  is  accomplished,  is  the  influence 
exercised  by  the  idea  itself  upon  its  own  realization. 
Here  we  are  not  taking  the  idea  in  the  metaphysical 
sense  of  Hegel  ;  we  do  not  regard  it  as  an  indescribable 
entity  impossible  for  experience  to  lay  hold  of,  we  mean 
the  very  ideas  which  our  own  intelligence  conceives 
and  which  are  our  own  thoughts.  Every  idea  which 
we  conceive  has  an  efïect  upon  us,  and  tends  towards 
realization  hy  the  very  fact  of  its  being  conceived  :  this  is 
our  guiding  principle.     To  think  of  anything,  indeed, 


180  ALFRED  FOUILLÉE  [  Ch.  IV 

is  already  to  set  about  it;  one  cannot,  for  example, 
have  the  idea  of  a  movement  without  producing  this 
same  movement  in  the  brain,  nor  the  idea  of  a  melody 
without  mentally  singing.  Furthermore,  there  are 
among  ideas  some  which  are  superior  to  all  others,  which 
express  ideals  ;  such  is  freedom,  and  such  is  right.  These 
ideas  are  types  of  action  which  indicate  the  most  elevated 
direction  human  nature  may  take,  the  completion  and 
the  perfection  of  our  nature;  these,  accordingly,  are 
the  directive  ideas,  the  force-ideas,  intellectual  motor 
agencies  and  effective  centers  of  attraction. 

§  134.  The  Self- Realization  of  Desire.  If  this  be  the 
case,  we  must  apply  to  the  theory  of  rights  a  philo- 
sophical doctrine  which  we  have  been  attempting  to 
present  elsewhere  for  some  time,  and  put  to  the  test 
its  fruitfulness  in  the  social  order. ^  When  we  permit 
our  actions  to  be  guided  by  the  directive  idea  of  freedom, 
with  confidence  in  the  possibility  of  its  realization,  we 
actually  perceive  its  image  growing  clearer  and  clearer 

I  "La  Liberté  et  le  Déterminisme,"  2d  part.  Human  freedom,  apart 
from  metaphysicial  hypotheses  of  which  we  shall  speak  later,  consists 
practically  and  scientifically  in  the  power  to  change  oneself  by  the  very 
idea  which  we  have  of  this  same  power  and  of  our  possible  modifications. 
If,  for  example,  when  emotion  is  leading  me  in  a  given  direction,  I  con- 
ceive the  idea  of  changing  that  direction  so  as  to  attain  a  better  end, 
this  idea  of  my  power  is  the  commencement  within  me  of  a  real  power; 
it  is  the  force  of  the  idea  opposed  to  other  forces  and  capable,  through 
the  increasing  intensity  of  its  reflection  back  upon  itself,  of  out- 
weighing other  motives  to  its  own  advantage  or  to  the  advantage  of  a 
higher  motive.  This  is  all  that  psychological  and  physiological  experi- 
ment finds  within  us;  this  is  the  only  free  will  which  positive  science 
recognizes,  and  which  observation  shows  to  be  an  incontestable  fact. 
Suppose  that  the  conscious  statue  of  Condillac,  acquiring  the  idea  of, 
and  the  desire  for,  a  possible  modification  or  perfecting  of  its  features 
and  form,  should  by  that  very  acquisition  acquire  the  power  to  modify 
them;  it  will  progress  from  the  thought  of  its  ideal  and  the  desire  for 
it  to  its  final  realization.  This  power  of  self-modification  increases, 
first,  through  our  being  persuaded  of  its  existence,  second,  through  our 
consciousness  of  possible  modifications  and  of  the  means  of  their  realiz- 
ation. In  other  words,  we  are  the  more  capable,  the  better  we  realize 
our  internal  powers  and  our  means  of  external  action;  from  this  point 
of  view,  it  is  knowledge,  thought,  idea,  that  give  us  power. 


§  134  ]         THE  FORCE-IDEA  OF  RIGHT  181 

within  us,  by  virtue  of  determinism  itself.  The  natural 
laws  of  sympathy  which  operate  between  individuals, 
causing  tears  or  laughter,  fears  or  hope,  to  be  trans- 
ferred from  one  visage  to  another,  operate  also  in  the 
breast  of  the  single  individual;  idea  and  desire,  by  a 
kind  of  contagion,  enter  every  part  of  the  being  and 
imprint  their  likeness  there.  Just  as  man,  according 
to  Platonic  thought,  came  to  resemble  the  object  of  his 
contemplation  and  of  his  affection,  so  we  come  nearer 
to  freedom  by  dwelling  upon  it  and  desiring  it  —  an 
indefinite  approximation,  an  unlimited  evolution  which 
constitutes  the  moral  life.  Now  just  as  we  gain  a  self- 
control  the  greater  as  we  have  the  greater  and  more 
rational  faith  in  that  control,  just  as  we  virtually  acquire 
a  value  the  greater  as  we  are  better  and  more  rationally 
persuaded  of  our  own  value,  so  we  approach  simultane- 
ously the  ideal  of  right  and  the  ideal  of  freedom.  These 
are  two  parallel  processes  of  evolution  accomplished  in 
an  identical  manner  under  the  influence  of  the  idea.  To 
persuade  ourselves  that  we  have  neither  personal  in- 
dependence nor  moral  right  is  to  be  deprived  of  our  inner 
force,  is  to  turn  bondsmen  and  to  renounce  our  right; 
to  persuade  ourselves  that  we  are  capable  of  a  certain 
initiative  is  to  develop  within  ourselves  a  constantly 
increasing  energy.  And  along  with  this  energy,  dignity 
grows  likewise,  for  dignity  is  the  value  which  an  indivi- 
dual possesses  as  his  own,  the  higher  value  deriving  from 
personal  energy. 

§  135.  The  Basis  of  Right  in  a  Universal  End.  There 
was  something  altogether  too  crude  and  materialistic 
in  believing,  in  accord  with  the  traditional  philosophy, 
that  right  is  based  solely  upon  some  already  present  and 
tangible  reality,  which  may  be  established  as  an  empirical 
fact.  Why  may  not  an  ideal  and  intelligible  end  that  one 
has  in  view  serve  also  as  an  intelligible  basis  of  right? 


182  ALFRED  FOUILLÉE  [Ch.  IV 

Ideal  freedom,  conceived  as  an  ideal  power  of  disin- 
terestedness looking  toward  the  tmiversal,  is  precisely 
that  intelligible  end,  an  end  for  each  and  every  individual  ; 
that  ideal  includes  me,  as  well  as  you,  in  what  it  embraces. 
It  is  a  potential  focus  whither  all  wills  tend,  and  where 
all  wills  converge.  Now,  even  from  this  purely  ideal- 
istic point  of  view,  the  faculty  of  conceiving  the  universal 
and  of  willing  universally  comes  to  merit  a  respect  which 
is  also  universal,  by  virtue  of  its  normal  goal,  even  though 
it  should  not  actually  pursue  this  goal  at  all  times.^ 
Thus  an  idea,  a  pure  idea,  can  begin  to  confer  something 
of  its  worth  upon  us  from  the  very  moment  of  its  con- 
ception, and  if  the  value  of  this  idea  is  not  particular,  if 
the  idea  contains  a  conception  of  the  universal,  the  value 
of  the  will  which  it  guides  or  directs  will  itself  come  to  be 
of  an  altogether  different  kind  from  egoistic  interests  or 
egoistic  forces.  Once  more,  the  ideal  as  such  forms 
from  the  beginning  an  element  of  higher  dignity  in  the 
individual  who  conceives  it,  who  cherishes  it,  and  who 
trusts  in  it.  From  the  moment  when  we  have  conceived 
and  cherished  ideal  and  disinterested  freedom,  from  the 
moment  when  we  have  hoped  for  its  realization  in  our- 
selves, we  feel  unwilling  to  be  looked  upon  any  longer 
as  a  mere  thing;  rather,  we  would  be  a  living  thought, 
conceiving  the  universe,  a  consciousness,  an  intellect,  a 
will  capable  of  willing  for  others  as  well  as  for  itself, 
capable,  in  short,  of  willing  for  the  universe.  It  is 
useless  to  say  that  perhaps  we  do  not  really  possess  such 
freedom;  from  the  purely  philosophical  point  of  view, 
it  is  enough  that  we  really  do  conceive  it  and  draw  nearer 
to  it;  just  as  all  that  the  prisoner  needs  is  to  have 
glimpsed  the  free  heavens  and  a  possible  avenue  of  escape, 
in  order  to  preser\'e  an  indelible  recollection  of  them  — 
in  order  to  see  himself  already  a  free  man  —  in  order  that 
2  We  shall  return  to  this  point  later. 


§  135  ]  THE  FORCE-IDEA  OF  RIGHT  183 

this  one  hope  of  freedom  should  possess  within  itself 
a  principle  of  inviolability.  Everything  depends,  in- 
deed, on  the  object  of  one's  hopes;  if  this  object  is  es- 
sentially divine,  that  is  to  say,  if  at  heart  it  is  essentially 
human,  typically  social,  and  it  does  not  gainsay  other 
objects  of  human  desire,  then  even  this  hope  becomes 
divine  and  commands  respect  from  every  member  of 
the  human  society.  It  has  beeen  said  that  sorrow  is 
sacred  :  we  might  more  fittingly  speak  of  the  sacredness 
of  hope.  This  is  what  gives,  in  practice,  so  great  an 
influence  to  even  the  mere  idea  of  right.  He  who  is  not 
ready  to  maintain  his  own  ideal  right  identical  with  the 
right  of  all,  persistently  to  affirm  his  idea  and  his  hope 
in  the  face  of  brute  fact,  and  thus  to  uphold,  in  upholding 
his  own  will  and  dignity,  the  dignity  of  his  universal 
object  —  such  an  individual  sacrifices  at  once  his  moral 
rights  and  his  moral  force,  he  becomes  his  own  betrayer. 
And  this  which  is  true  of  the  individual  is  no  less  true 
of  the  nation. 

§  136.  Limitations  of  Spiritualism  and  Naturalism. 
This  idealism  is  ignored  by  Spiritualism  and  naturalism 
alike;  these  two  doctrines,  the  one  popular,  the  other 
exclusive,  unite  in  a  certain  disdain  for  whatever  is  pure 
idea.  The  Spiritualistic  school  conceives  the  ideal  only 
as  an  immediate  reality,  as  something  already  achieved 
in  a  transcendent  world.  The  naturalistic  and  historical 
school,  on  the  other  hand,  would  have  us  depend  wholly 
on  our  past  and  on  the  predetermined  course  of  phen- 
omena. Taine  declares,  for  example,  that  for  consti- 
tutions and  legal  systems  "it  would  be  in  vain  to  indicate 
our  preferences;  history  and  nature  have  chosen  for  us 
in  advance;  it  is  for  us  to  accommodate  ourselves  to 
them,  for  they  will  not  accommodate  themselves  to  us; 
the  social  and  political  form  which  a  nation  may  adopt 
and    retain    is    not    left    to    arbitrary    choice,    but    is 


184  ALFRED  FOUILLÉE  I  Ch.  IV 

determined  by  its  character  and  its  past."  ^  We  hear 
endless  talk  of  the  past,  in  the  historical  school,  and 
no  heed  is  given  to  the  future.  Now,  it  is  with  the 
future  in  mind  that  we  think  of  ourselves  as  capable  of 
increasing  activity,  and  therefore  of  increasing  worth. 
A  right  is  no  more  nor  less  than  an  idea  turned  toward 
the  future;  it  is,  so  to  speak,  respect  for  the  future  in 
the  present;  perhaps,  also,  respect  for  that  which  is 
above  all  considerations  of  time.  What  would  we  say 
of  a  man  who,  having  to  choose  between  a  righteous  life 
and  an  unrighteous  one,  would  apply  this  argument  to 
himself:  "Nature  chose  for  me  in  advance,  the  course 
of  life  which  is  open  to  me  is  determined  by  my  character 
and  my  past;  up  to  this  day  I  have  been  unrighteous, 
I  have  consequently  to  remain  faithful  to  my  historical 
character"?  Those  who  revive  this  argument  of  "in- 
dolent sophism"  neglect  the  essential  element  of  the 
problem,  which  we  have  just  established;  they  forget 
that  idea  itself  operates  to  transform  nature,  to  produce 
the  future,  that  history  is  enacted  with  our  aid,  not 
without  it,  and  that  it  is  history  which  in  the  end  must 
do  the  accommodating.  Good  lawgiving  and  good 
politics  are  like  good  warfare;  victories  do  not  come  of 
themselves,  and  if  the  Turks  were  as  thorough  fatalists 
as  they  are  reputed  to  be  they  would  not  have  won  at 
Plevna.  The  words  of  Taine  serve  as  an  illustration  of 
the  famous  expression,  "Constitutions  are  not  made, 
they  grow";  and  the  reply  might  be  made  to  him,  as 
to  Burke  and  Krause,  that  men  do  not  waken  in  the 
morning  to  find  constitutions  full-grown;  these  are  not 
like  the  trees  which,  once  planted,  keep  on  growing 
while  men  sleep,  for  they  are  the  handiwork  of  men 
themselves.  Moreover,  the  fecund  germ  is  here  not  an 
exterior  force,  but  an  interior  idea  which,  as  soon  as  it 
is  conceived,  begins  to  develop  and  to  gain  vitality. 

'  'L'Ancien  Régime,"  preface. 


§137]         THE  FORCE-IDEA  OF  RIGHT  185 

§  137.  Ground  Gained  from  the  Naturalists.  In  our 
opinion,  therefore,  the  naturalists  will  finally  have  to 
agree  with  the  idealists  that  no  individual  or  no  nation 
can  be  too  keenly  conscious  of  a  capacity  for  progress 
toward  the  ideal,  of  an  interior  reserve  of  available 
strength  upon  which  to  build  the  future,  and  conse- 
quently of  an  increasing  worth  which  can  be  acquired  by 
effort. 

Besides  this  first  point,  the  naturalists  will  also  have 
to  concede  a  second  ;  if  there  are  limits  to  this  perfectible 
energy  which  constitutes  the  worth  of  men  and  of  nations, 
these  limits  are  at  least  unknown  to  us,  and  in  practice 
can  be  indefinitely  extended;  for  who  can  determine 
beforehand  the  bounds  of  human  activity,  and  say  that 
it  shall  go  no  further?  No  one,  consequently,  can 
bespeak  for  any  man  or  aggregation  of  men  a  fixed 
material  valuation,  a  limit  value,  so  to  speak.  More- 
over, it  is  right  that  these  boundaries  should  be  at  the 
furthest  possible  remove.  The  naturalists  will  have  to 
agree,  then,  that  the  closest  conformity  to  the  ideal  of 
our  nature,  as  well  as  of  our  rights,  will  be  obtained 
by  accumulating  and  storing  away  within  us  the  greatest 
amount  possible  of  personal  energy,  of  latent  promise, 
which  the  social  order  will  naturally  serve  not  to  repress, 
but  to  release. 

§  138.  The  Basis  of  the  Theory  Laid  Down.  Thus 
we  begin  the  theory  of  rights,  like  the  theory  of  ethics, 
with  a  pure  idea,  whose  consequences  and  means  of 
realization  we  analyze  scientifically,  reserving  meta- 
physical criticism  for  a  later  occasion,  and  the  funda- 
mental idea  of  rights  is,  in  our  belief,  the  same  as  that 
of  morals:  the  ideal  of  a  free,  unbiased  will,  that  is,  a 
will  capable  of  being  progressively  independent  of  all 
narrow  and  inferior  motives.  The  geometrician  presup- 
poses the  notion  of  space,  the  physicist  that  of  matter; 


186  ALFRED  FOUILLÉE  [Ch.  IV 

similarly  the  sociologist  has  to  presuppose,  as  the  goal 
of  social  science,  the  ideal  of  both  personal  and  im- 
personal freedom,  as  we  have  defined  it.  Thus,  we 
possess  as  the  basic  principles  of  our  doctrine  two  things 
which  have  a  positive  scientific  value,  two  things  which 
no  system  can  deny  nor  refuse  to  let  us  hold,  an  idea  and 
a  fact  —  the  idea  of  freedom,  and  the  fact  that  freedom 
tends  to  realize  itself,  and  by  degrees  our  rights  also, 
within  us.  As  the  idea  itself  is  a  fact,  we  can  say  (in- 
dependently of  the  metaphysical  considerations  which 
we  shall  presently  come  to)  that  we  take  as  a  scientific 
point  of  departure  two  facts  equally  positive  and  sus- 
ceptible of  experimental  verification,  a  thought  and  an 
action.  Furthermore,  we  have  a  real  connection  between 
thought  and  action:  namely,  progress,  by  which  thought 
transforms  action  itself,  and  which  constitutes  what 
we  may  call  practical  or  progressive  freedom. 

§  139.  Three  Phases  in  the  Evolution  of  Freedom. 
Let  us  now,  without  departing  again  from  the  purely 
scientific  and  experimental  domain,  trace  briefly  the 
principal  stages  in  the  evolution  of  freedom,  which  has 
its  parallel  in  the  evolution  of  law.  We  shall  thus  per- 
ceive by  what  degrees  the  feeling  of  right  is  actually 
developed  in  the  human  consciousness. 

Man  first  conceives  of  the  independence  of  the  will 
in  relation  to  some  special  motive,  some  particular  end, 
fear,  for  example,  or  cupidity;  and  indeed,  thanks  to 
the  idea  itself  of  our  independence,  which  suspends  our 
decision  and  makes  us  regard  two  contraries  as  possible, 
we  become  really  capable  of  opposing  one  motive  to 
another,  of  triumphing  over  one  motive  by  means  of 
another,  or  over  several  by  means  of  all.  This  influence 
exerted  by  the  idea  constitutes  the  only  possible  free 
will,  one  which  does  not  exclude  the  determinism  of  which 
it  is  a  form,  but  which  renders  this  determinism  more 


§  139  ]  THE  FORCE-IDEA  OF  RIGHT  187 

flexible,  better  suited  to  the  realization  of  contrary  effects, 
and  consequently  more  progressive.  Thus  regarded, 
free  will  is  the  first  means  by  which  we  become  cognizant 
of  our  new-born  independence,  of  our  nascent  rights. 
The  child  tries  to  assert  his  rights  by  doing  exactly  the 
contrary  of  what  he  is  commanded  to  do,  so  that  he 
may  give  himself  a  view  of  the  power  which  he  holds 
or  thinks  that  he  holds  over  contraries,  of  his  legislative 
and  executive  power. —  In  the  second  place,  we  may 
show  ourselves  independent  of  all  motives  at  once 
(apparently  so,  at  any  rate),  and  may  act  indifferently, 
without  visible  reason;  but  even  while  we  thus  appear 
to  will  without  reason,  there  is  still  a  final  reason  which 
persists,  and  turns  the  scale  by  a  hidden  determinism, 
namely,  the  idea  itself  that  we  can  act  regardless  of  reason. 
We  are  all  familiar  with  those  toys  which  when  laid 
in  a  horizontal  position,  spring  upright  of  themselves, 
without  any  visible  cause;  a  ball  of  lead  concealed  in 
the  base,  heavier  than  all  the  rest,  is  enough  to  draw 
them  over  and  to  determine  their  position.  Thus  is 
produced  the  apparent  freedom  of  indifference,  the  seem- 
ing indeterminateness,  the  caprice,  which  is  in  fact 
nothing  more  than  a  form  of  determinism.  Man  thinks 
that  he  sees  in  this  also  a  second  means  of  affirming  his 
rights:  "Sic  volo,  sic  jubeo,  sit  pro  ratione  voluntas"; 
this  is  a  kind  of  arbitrary  despotism  which  is  a  delight 
to  children  because  they  find  in  it  a  ready  means  of 
displaying  their  autonomy,  of  creating  in  their  own 
minds  the  illusion  of  a  kind  of  absolute,  royal  right. —  In 
the  third  place,  we  may  act  independently  of  every 
particular  motive  and  of  every  limited  or  material  aim, 
we  may  place  our  goal  beyond  all  confines,  we  may  will 
universally,  we  may  desire  the  good  of  all  humanity 
and  of  all  the  world;  this  constitutes  morality,  which, 
again,  is  not  the  absence  of  all  motive,  but  the  prepon- 


188  ALFRED  FOUILLÉE  [  Ch.  IV 

derance  of  the  universal,  disinterested  motive.  This 
preponderance  indicates  the  return  of  the  will  to  its  own, 
its  complete  and  virile  self-possession,  consequently  its 
true  freedom.  Here,  too,  we  find  the  highest  conscious- 
ness of  the  right',  it  is  the  point  where  our  personal  in- 
dependence seems  to  be  linked  with  the  independence 
of  all  other  beings,  where  our  right  appears  to  have  its 
complement  and  even  its  rational  condition  of  existence 
in  the  rights  of  all.  A  right  is,  in  one  sense,  a  higher  form 
of  self-love,  but  only  as  that  love  is  compatible  with  an 
equal  love  of  others  for  themselves;  it  is  the  highest 
instinct  of  conservation  and  particularly  of  development, 
but  it  is  also  the  instinct  of  disinterestedness,  for  in  that 
lofty  realm  true  moral  interests  become  merged,  and 
the  dignity  of  one  calls  for  the  dignity  of  all.  Such  are 
the  three  principal  phases  by  which  we  obtain,  in 
practical  life  and  in  the  scientific  order,  a  gradual  ap- 
proximation to  ideal  freedom.  "* 

<  The  only  practical  freedom  compatible  with  science,  in  our  opinion,^ 
is  that  internal  power  of  development  which  can  move  steadily  forward 
in  the  direction  of  the  ideal,  not  by  miraculous  means,  but  by  natural 
and  intellectual  means  which  constitute  in  themselves  a  determinism. 
What  man  is,  in  practice,  physically  free?  It  is  he  who  can  advance 
without  stopping,  who  has  space  before  him,  with  no  bonds  to  stay 
him  permanently  at  any  point.  What  man  is,  in  practice,  morally  free? 
It  is  he  whose  will  may  develop  continuously,  surmounting  in  succession 
all  incentives,  all  motives,  and  all  special  ends.  In  this  conception, 
naturalism  and  idealism  approach  each  other  and  unite.  Indeed,  our 
inclination  to  freedom  is  operative  in  the  heart  of  nature  and  the  bosom 
of  society,  and  not  in  a  world  of  "noumena"  like  that  of  Kant.  As  a 
psychological  tendency,  it  is  not  transcendent,  but  immanent,  even 
when  its  object  seems  to  be,  in  a  sense,  transcendent.  It  is  not  essentially 
distinct  from  intelligence  itself,  nor  from  reflection,  which  is  its  conscious 
form  and  manifestation.  It  acts  through  the  idea;  it  is  itself  an  idea 
in  process  of  development;  and  lastly,  since  it  finds  its  motive  power  in 
consciousness  of  self,  it  is  its  own  motive  power.  Everything  develops, 
and  the  whole  world  evolves.  To  comprehend  this  universal  principle, 
and,  through  reflection,  to  aid  in  its  realization  round  about  us,  within 
us  and  through  us, — this  is  our  privilege.  It  is  this  power  to  develop  all 
of  our  faculties  by  reflection,  to  become  all  that  we  can  become,  gradually 
to  fulfill  our  ideal  of  individual  independence  and  of  union  with  the 
universality  of  beings,  which  constitutes  our  practical  and  progressive 
freedom. 


§  140  ]  THE  FORCE-IDEA  OF  RIGHT  189 

§  140.     Infinity  of  the  Ideal  of  Right.     At  the  same 
time  this  internal  evohition  which  we  have  just  described 
provides  us,  better  than  anything  else,  with  the  qualities 
necessary  to  the  realization  of  the  idea  of  right.     In  the 
first  place  a  right  implies  independent  power,  the  ability 
to  make  use  of  what  is  and  to  create  what  is  not,  to  act, 
to  work,  to  develop.     To  have  a  right  is  to  have  a  right 
to  something;  the  idea  of  right,  as  we  have  seen,  in- 
vokes  the  idea  of  the  future;  right  might  almost  be 
defined   as  access  to  the  future.     Consequently,   right 
presupposes  progressivity.     Now  we  have  just  seen  that 
practical    freedom    is   a    power    eminently    progressive; 
we  conceive  it,  in  fact,  as  a  power  which  is  not  exhausted 
by  its  activities,  which  always  can  do  more  than  it  does, 
and  which  holds  more  than  it  gives  out.     Such  a  fecund 
and  inexhaustible  genius  continually  adds  to  its  original 
achievements    new,    larger,   mightier   works,   more   like 
itself,   though  still  powerless  to  express  the  infinity  of 
its  ideal.     This  is  the  source  of  rights.^      If  I  had  but 
a  fixed  value  which,  by  approximation,  might  be  esti- 
mated quantitatively  at  such  and  such  a  figure,  it  would 
be  easy  to  find  material  possessions  which  would  prove 
me  inferior,  in  the  name  of  which  anything  would  be  per- 
mitted against  me.     What  could  a  single  will  do  against 
the  interest   of  a  nation?     Even  though    exact  figures 
in  the  social  budget  could  not  express  the  value  of  an 
individual  and  of  a  nation,    it   might   nevertheless    be 

6  When  we  say  that  freedom  and  its  progress  include  the  idea  of  the 
infinite,  we  take  the  word  "infinite"  not  in  a  metaphorical,  but  in  a 
truly  scientific  sense.  In  mathematics,  we  call  that  infinite  which  is 
greater  than  any  given  quantity.  This  infinity  may  be  a  variable;  it 
is  not  necessary  that  it  should  be  fixed  and  determinate  in  all  of  its 
relations.  Similarly,  practical  freedom  may  be  a  variable,  constantly 
moving  towards  perfection,  traveling,  as  it  were,  eternally  forward 
on  a  limitless  course.  If  this  be  true,  the  will  may  justly  be  called  in- 
finite, that  is,  surpassing,  in  its  ever  active  and  ever  moving  essence, 
every  set  limit,  every  fixed  and  lifeless  measure,  such  as  number.  By 
the  same  token  its  inmost  value  would  be  incommensurable. 


190  ALFRED  FOUILLÉE  [Ch.  IV 

affirmed  that  the  interest  of  the  people  in  the  aggregate 
represents,  in  quantity,  a  greater  value  than  does  the 
isolated  individual.  But  if  we  are  conscious  of  a  faculty 
for  evolution  and  for  unlimited  improvement,  if  we 
believe  that  we  have  a  genius  (in  the  old  sense  of  the 
word)  for  truth  and  justice,  capable  of  producing  works 
which  are  nearer  and  nearer  perfection,  our  moral  value 
will  exceed  in  our  eyes  every  measurable,  material 
quantity.  The  Roman  general  who  imagined  that  he 
was  replacing  masterpieces  of  painting  by  some  equiva- 
lent showed  that  his  mind  was  closed  to  the  idea  of  the 
incalculable  value  of  works  of  art;  what  should  we  say 
if  his  imagination  had  conceived  some  equivalent  for  the 
artist  himself,  and  had  placed  a  material  valuation  upon 
him  as  upon  a  slave? 

§  141.  Respect  for  the  Ideal  of  Right  is  Due  to  its 
Progressivity.  From  what  has  gone  before,  we  see  that 
the  ideas  of  right  and  unlimited  perfectibility  are  inti- 
mately related,  and  that  the  instinct  of  the  French 
Revolution,  in  not  separating  them,  was  based  on  a 
profound  intuition.  What  one  respects  in  the  human 
being  who  is  endowed  with  will  and  reason  is  not  so 
much  what  he  actually  is  as  what  he  may  be;  it  is  the 
possible  issuing  from  the  actual,  the  ideal  dominating  the 
real.  The  present  is  big  with  the  future,  said  Leibnitz. 
The  reserve  of  will  and  of  intelligence  in  the  human 
brain,  the  faculty  for  progress  in  the  individual  and 
even  in  the  species  (which  rests  in  part  upon  that  brain) — 
this  it  is  which  we  respect  and  which  we  call  the  right. 
In  the  child  we  respect  the  man,  in  the  man  we  respect 
humanity  and,  so  to  speak,  the  ideal  God.  Even  in 
ill  will  we  respect  the  potential  good  will.^ 

§  142.     Man's  Idea  of  the  Right  a  Basis  for  Practical 
Rights.     Thus  is  all  humanity  ennobled  in  our  eyes,  or, 

«  This  is  a  point  to  which  we  shall  return  later. 


§  142 1  THE  FORCE-IDEA  OF  RIGHT  191 

better  said,  made  as  it  were  divine.  If,  therefore,  our  point 
of  view  is  purely  scientific,  we  should  not  say,  "Man  has 
an  inestimable  value  because  he  is  free" — something  which 
cannot  be  scientifically  proved  —  still  less,  "because  he  is 
freely  good"  ;  but  we  may  say,  "Man  has  already  a  value 
which  is  inestimable,  or  greater  than  every  given  quantity, 
simply  because  he  possesses  the  idea  of  freedom  and  the 
idea  of  unreserved  goodness  and  universal  brotherhood,  of 
which  the  primary  condition  is  justice."  In  other  words, 
man  possesses  rights  practically,  solely  by  virtue  of  his 
being  a  conscious  individual  with  the  idea  oj  right. 


192  ALFRED  FOUILLÉE  [Ch.V 


CHAPTER  V 

METAPHYSICAL    HYPOTHESES    CONCERNING 
THE    ULTIMATE    BASIS    OF    LAW 

THE  SPHERE  OF  METAPHYSICS— THE  PROBLEM  OF 
INDIVIDUATION  — THE  REALM  OF  THE  UNKNOWN  AND 
THE  UNKNOWABLE  —  CHARACTERISTICS  OF  CONSCIOUS- 
NESS—A METAPHYSICAL  FOUNDATION  FOR  RIGHT  — 
THE  METAPHYSICAL  FOUNDATION  NOT  EXCLUSIVE  — 
FURTHER  CONSIDERATION  OF  HUMAN  CONSCIOUSNESS  — 
RELATION  BETWEEN  SELF-INTEREST  AND  RIGHTS  — 
SCIENCE  ENDS  WHERE  JUSTICE  AND  RIGHTS  BEGIN  — 
OBJECTIVE  VALUE  OF  THE  IDEAS  OF  FREEDOM  AND 
RIGHT. 

§  143.  The  sphere  of  Metaphysics.  A  final  question 
presents  itself.  We  have  laid  down  as  principles  two 
things:  a  wholly  ideal  freedom  and  a  determinism  which 
is  real  from  the  point  of  view  of  experience.  This  de- 
terminism, as  we  have  shown,  may  draw  perpetually 
nearer  to  its  ideal;  but  can  it  ever  attain  to  it?  Can 
we,  by  certain  acts  which  seem  to  surpass  all  others  in 
heroism  or  unselfishness,  actually  reach  the  goal?  In 
this  subject  we  can  form  only  hypotheses;  and  this  is 
the  field  allotted  to  metaphysics,  considered  as  system- 
ization  of  the  data  of  experience  or  as  universal  cosmology; 
the  preceding  questions  belonged  properly  to  the  scienti- 
fic order.  There  are  grounds  for  doubt;  there  are  also 
grounds  for  belief.  What  is  really  the  question?  It  is 
the  very  foundation  of  things.  Do  things  have  a  found- 
ation?    If  they  have,  is   there   some    primal   necessity 


§143]        METAPHYSICAL  HYPOTHESES  193 

within  this  foundation,  which  rivets,  so  to  speak,  the 
Hving  being  to  itself?  Is  there,  on  the  contrary,  some 
primal  freedom  from  whose  spontaneity  gushes  forth 
a  stream  of  life?  Is  it  the  law  of  destiny  of  Heraclitus, 
the  "clinamen"  of  Epicurus,  the  substance  of  Spinoza, 
the  "noumenon"  of  Kant,  the  absolute  will  of  Schopen- 
hauer? Let  the  metaphysicians  choose,  and  their  choice 
can  be  made  only  by  comparing  probabilities,  and  by 
drawing  inductions  from  the  general  conclusions  of 
science  and  the  facts  of  consciousness. 

§  144.  The  Problem  of  Individuation.  The  theory 
of  rights  thus  brings  us  finally  face  to  face  with  the  pro- 
found problem  which  stirred  the  Middle  Ages  and  which 
still  survives  in  the  philosophy  of  the  present  day,  the 
problem  of  individuation.  What  is  it  that  constitutes 
the  individual  and  the  individual  consciousness?  What 
is  the  ultimate  root  of  that  conscious  ego  in  which  the 
idea  of  right  seems  to  inhere?  Is  there  nothing  in  our 
natures  except  phenomena,  or  do  we  strike  at  some 
point  a  more  lasting  reality,  as  the  plant  clings  to  the 
soil  from  which  it  draws  its  sap?  The  part  played  by 
the  physical  and  social  environment  is  and  will  always 
be  immense;  organs,  temperament,  heredity,  education, 
how  many  influences  act  upon  me!  I  am  the  point  of 
contact  and  intersection  of  an  infinity  of  circumstances, 
as  though  an  invisible  circle  were  cut  through  in  every 
direction  by  a  network  of  great  circles  in  infinite  number 
—  in  the  midst  of  whose  intersections  the  eye  should 
seek  in  vain  to  distinguish  it.  But  suppose  that  it  had 
at  its  living  center  a  power  of  expansion  enabling  it  to 
grow  steadily  larger,  and  to  extend  its  radii  in  all  direc- 
tions; perhaps  it  would  become  distinguishable  in  time, 
and  one  would  find  oneself  forced  to  recognize  in  con- 
sciousness the  true  radiant  center  of  life  and  even  of 
motion. 


194  ALFRED  FOUILLÉE  [  Ch.  V 

§  145.  The  Realm  of  the  Unknown  and  the  Unknow- 
able. We  have  not  sufficiently  considered  the  moral 
and  juridical  consequences  which  flow  from  the  guiding 
principle  of  modern  science:  the  relativity  of  science, 
the  relativity  of  our  knowledge,  whence  the  certain 
existence  of  the  unknown  may  be  deduced  as  well  as  the 
possible  existence  of  the  unknowable.  At  first  glance, 
this  seems  far  removed  from  the  idea  of  right;  we  shall 
see,  however,  that  it  expresses  the  ultimate  metaphysical 
foundation  of  that  idea. 

But  first,  what  is  the  true  meaning  of  the  unknowable? 
Perhaps  it  is  a  chimera;  perhaps  everything  is  or  might 
be  the  object  of  positive  knowledge.  Yet  positive  knowl- 
edge has  at  least  two  limits:  on  the  one  hand,  the  idea  of 
matter,  of  motion,  of  force,  of  life;  on  the  other,  the  idea 
of  thought  and  consciousness.  From  the  point  of  view 
of  even  the  most  radical  Positivism,  it  may  be  that 
thought  is  not  of  a  nature  to  penetrate  to  the  foundations 
of  everything;  it  may  be  that  the  brain  is  not  of  a  nature 
to  speak  the  last  word,  if  there  is  a  last  word,  concerning 
things.  Much  less  can  it  pronounce  the  whole  eternal 
discourse  concerning  them,  if  this  discourse  has  neither 
a  first  word  nor  a  last.  The  brain  may  be  such  that  it 
cannot  grasp  the  innermost  meaning  of  being  or  of 
phenomenon,  the  objective  reality.  A  true  Positivist,  as 
well  as  a  true  Criticist  or  a  true  sceptic,  should  hold  in 
the  background  of  his  thought  a  What  do  I  know}  and  a 
perhaps.  He  ought  at  least  to  say,  ''perhaps  things  have 
an  unknown  foundation,  since  knowledge  properly  so- 
called  comprehends  only  relations  and  surfaces."  He 
should  not  assert  the  adequacy  of  the  brain  to  reality, 
the  adequacy  of  science  to  reality,  but  only  to  reality  as 
knowable  by  us.  Even  experience  teaches  us  that  our 
brain  is  not  so  made  as  to  represent  all  things  always  as 
they  are,   independent  of  the  brain  itself;  experience 


§145]        METHAPYSICAL  HYPOTHESES  195 

invites  us,  therefore,  to  conceive  on  the  one  hand  a 
totality  of  objective  things,  on  the  other  a  totality  of  sub- 
jective states,  and  proposes  the  problem:  Is  this  totaHty 
of  subjective  thought  identical  with  and  adequate  to 
this  totality  of  objective  reality?  Thus  we  form  an 
indirect  and,  so  to  speak,  parabolic  conception  of  some- 
thing other  than  the  knowable,  namely,  the  non-knowable, 
the  hypothetical  unknoivahle,  which  might  better  be 
called  the  irreducible.  When  we  conceive  of  the  funda- 
mental limitation  of  the  mind  and  the  brain,  "alte 
terminus  haerens,"  we  also  conceive,  by  projection  and 
induction,  of  an  obscure  beyond.  Hence  the  object  felt 
or  thought  of  is  not  conceived  as  certainly  and  entirely 
penetrable  by  knowledge,  penetrable  by  the  thinking 
and  feeling  subject. 

§  146.  Characteristics  of  Consciousness.  On  the  other 
hand,  perhaps  the  subject  itself,  in  its  turn,  is  not  com- 
pletely penetrable  by  itself.  What,  in  reality,  is  this 
consciousness  which  includes  itself  among  the  objects 
of  its  thought,  this  consciousness  concerning  which  so 
many  hypotheses  have  been  proposed  ;  which  is  indivis- 
ible for  some,  for  others  complex  and  divisible;  which 
to  some  is  a  sealed  book,  to  others  open  and  penetrable; 
individual  according  to  some,  capable  according  to 
others  of  extension  to  whole  societies,  to  vast,  ever-in- 
creasing groups,  of  merging  thus  with  other  units  of 
consciousness  into  one  common  social  consciousness? 
This  is  a  problem  which  never  has  been,  and  possibly 
never  will  be  solved,  for  consciousness  is  sui  generis 
and  incomparable.  We  cannot  classify  it  under  a 
higher  genus,  nor  can  we  mark  its  essential  difference 
from  other  things  of  the  same  genus;  it  lacks  the  at- 
tributes necessary  to  comprehensibility.  Thus,  once 
again,  consciousness  does  not  comprehend  itself;  there 
is,  then,   at   the    bottom   of   the    consciousness    of    the 


196  ALFRED  FOUILLÉE  [Ch.V 

unknown,  and  of  that  which  is  perhaps  irreducible  to 
knowledge,  something  at  least  which  for  consciousness 
is  intellectually  obscure,  even  though  it  be  actually 
immanent  in  its  very  existence.  In  a  word,  the  indivi- 
dual and  introspective  consciousness  is  not  adequate 
to  its  own  conditions,  its  own  basis,  its  own  content, 
or  its  own  synthesis.  In  this,  the  psychical  discovers  a 
limit,  so  to  speak,  in  that  continuation  of  itself  which 
we  may  call  the  matapsychical;  subjective  knowledge 
dashes  itself  against  a  wall,  against  an  indescribable 
something  which  analysis  cannot  penetrate,  which  is 
doubtless  the  same  as  the  impenetrable  in  matter,  or  the 
metaphysical  properly  so-called.  ^  Thus  the  common 
or  synthetic  basis  of  the  object  and  the  subject  is  hidden 
in  darkness.  We  conceive  other  objects  themselves 
only  as  other  subjects  more  or  less  analogous  to  our  own 
consciousness  ;  we  conceive  other  consciousnesses  :  this  is, 
as  it  were,  intellectual  altruism,  the  foundation  of  all 
other  altruism. 

§  147.  A  Metaphysical  Foundation  for  Right.  Now, 
what  is  needed  for  a  metaphysical  basis  of  right?  A 
principle  which  would  rationally  lead  to  a  certain  absten- 
tion in  relation  to  the  conscious  will  of  others,  in  so  far 
as  that  conscious  will  refrains  from  intruding  upon  our 
own.  This  abstention  will  be  a  limit  imposed  upon  the 
indefinite  expansion  of  our  egoism,  that  is  to  say,  of  our 
material  strength  and  of  our  palpable  interests.  Now 
the  principle  of  the  relativity  of  our  knowledge  —  a 
corollary  of  which  is  the  problematical  idea  of  the  irre- 
ducible, immanent  in  being  and  in  thought,  in  short, 
of    ultimate    reality  —  this    principle    has    rationally    a 

I  We  should  not  be  misled  by  the  words  7neta physical  and  metapsychical 
which  we  have  just  used;  they  signify  nothing  outside  the  limits  of  the 
physical  or  especially  of  the  psychical,  nothing  really  transcendental, 
but  rather  their  most  immanetit  part,  that  which  constitutes  them  a 
reality,  even  though  knowledge  cannot  grasp  it. 


§147]        METAPHYSICAL  HYPOTHESES  197 

limiting  effect  on  action  as  well  as  on  thought.  In 
limiting  intellectual  dogmatism,  it  limits  practical  dog- 
matism also;  it  restrains,  in  the  individual,  the  absolute 
attachment  of  the  will  to  tangible  possessions,  as  it 
curbs  the  pride  of  physical  and  mechanical  knowledge. 
The  restraint  is  still  stronger  as  applied  to  the  egoism 
of  one  individual  in  the  presence  of  another;  with  the 
ego  no  longer  the  sole  consideration,  the  principle  of 
abstention  becomes  more  important.  The  idea  of  the 
irreducible  which  thought  then  attributes  to  the  con- 
sciousness of  others  as  well  as  to  our  own,  is  essentially, 
for  our  thought,  only  a  negative  and  limitative  idea:  it 
is  thought  conceiving  its  own  possible  limit;  but  this 
limit  ends  nevertheless  in  the  affirmation  of  other  con- 
sciousnesses limiting  ours:  it  takes  us  outside  the  ego. 
This  idea  is,  by  that  fact  itself,  sufficient  to  justify 
metaphysically  the  practical  and  moral  restraint  of  our 
will  in  the  presence  of  other  wills,  of  our  consciousness 
before  the  consciousnesses  of  others.  To  make  one's 
egoism  and  one's  ego  absolute  is  to  dogmatize  in  action 
as  well  as  in  thought  ;  it  is  to  act  as  though  one  possessed 
the  absolute  formula  of  being;  it  is  to  say  that  the 
mechanically  knowable  world  is  all,  that  force  is  all, 
that  interest  is  all.  Injustice  originates  in  practical 
dogmatism  and  in  absolutism,  Xoyw  koI  cpyw-  Justice, 
on  the  contrary,  is  a  mutual  limitation  of  wills  and  con- 
sciousnesses by  a  single  idea  equally  limitative  for  all; 
and  by  this  I  mean  the  idea  of  limitation  itself,  which 
is,  first,  inherent  in  our  physical  knowledge,  and  so 
opens  the  way  to  cosmological  speculation;  and  second, 
inherent  in  our  consciousness  as  limited  by  other  con- 
sciousnesses, and  so  leads  to  psychological  speculation.^ 
To  set  up  the  mechanism  of  forces  or  of  interests  as  the 

2  For  the  development  of  this  point  of  view,  see  our  "Critique  des 
Systèmes  de  Morale  Contemporains." 


198  ALFRED  FOUILLÉE  [  Ch.  V 

only  law  is  to  affirm  that  mechanism,  as  such,  is  the 
only  reality;  but  that  is  something  which  never  has  been 
and  never  can  be  demonstrated  ;  something  which  cannot 
be  explained  will  always  remain,  if  only  motion  itself, 
if  only  sensation,  as  an  element  of  consciousness.  United 
to  all  the  various  other  considerations,  the  idea  of  that 
irreducible  something  which  constitutes  our  conscious- 
ness, in  restraining  our  sensible  consciousness,  imposes 
upon  us  with  like  rationality  the  restriction  of  our  sensible 
motives,  and  does  so  in  the  interest  of  others,  in  the 
interest  of  all.  "Solipsism,"  as  the  English  call  it,  is 
as  inadmissible  in  ethics  as  in  metaphysics,  although 
it  may  perhaps  be  irrefutable  in  both  spheres. 

§  148.  The  Metaphysical  Foundation  Not  Exclusive. 
It  may  seem  strange  to  base  right  on  a  principle  of 
doubt,  or,  as  it  were,  on  a  problem.  But  we  shall  see  at 
once  that  this  metaphysical  basis  does  not  in  any  way 
exclude  all  other  positive  and  scientific  foundations; 
it  merely  prevents  their  being  set  up  as  absolute,  and  it 
thereby  prevents  justice  and  the  right  from  being  ivholly 
absorbed  in  force  or  in  interest,  in  short,  in  mechanism 
and  in  organism,  which  are  not  perhaps  the  whole  of 
nature.  Now  this  "non  plus  ultra"  is  essential  for  the 
estabhshment  of  a  right  which  is  genuine  and  yet  im- 
manent, which  egoism  cannot  break  down,  which  force 
and  interest  by  themselves  are  incapable  of  establishing. 
Moreover,  this  problem  deals  with  an  undeniable  reality, 
namely,  our  consciousness  itself,  which,  enveloping 
everything,  cannot  be  enveloped  or  contained  in  any 
other  thing;  which  is,  in  a  word,  uncontainable.  Fin- 
ally, we  can  maintain  in  a  problematic  state,  but  still 
irreducible  to  anything,  that  universal  ideal  of  con- 
sciousness from  which  Kant  derived  his  "category  of 
the  ideal."  But  Kant  has  sometimes  seemed  to  re- 
present as  transcendent  that  which  is   in    fact    preëmi- 


§148]        METAPHYSICAL  HYPOTHESES  199 

nently  immanent  and  constitutive  of  consciousness  itself; 
moreover,  Kant  tried  to  deduce  from  it  an  imperative 
and  formal  law.  We  no  longer  follow  him  in  that  part 
of  the  "Critique  of  Practical  Reason,"  and  we  reject 
its  transcendental,  supranatural  features;  but  we  pre- 
sei-ve  what  we  can  of  the  "Critique  of  Pure  Reason," 
that  is,  one  simple  idea,  the  loftiest  of  all,  the  most 
obscure,  the  most  enigmatical,  that  of  the  impenetrable 
depth  of  consciousness,  which  all  of  our  analytical 
science  is  incapable  of  reaching.  It  may  be  said  that 
this  is  simply  an  x,  an  interrogation-point;  agreed,  but 
this  interrogation-point  which  involves  me  and  you  and 
all  besides,  sufifices  to  demolish  the  dogmatism  of  force 
and  of  interest;  it  forbids  them,  since  they  are  not  the 
whole,  to  set  themselves  up  practically  as  if  they  were. 
And  on  this  basis  may  be  founded  the  true  liberalism, 
which  had  been  compromised  by  the  idea  of  force  or  of 
interest,  considered  exclusively. 

§  149.  Further  Consideration  of  Human  Consciousness. 
So  then,  there  is  in  the  depths  of  man's  nature  a  problem 
and  an  immanent  enigma,  whether  with  Hamilton  and 
Spencer  we  call  it  the  unknowable,  with  Schelling  and 
Plato  TO  OVTWÇ  ov,  with  Kant  the  "noumenon"  or  with 
Schopenhauer  the  will.  There  is  a  limitless  perspective 
in  human  consciousness  itself,  an  inexplicable  outlook 
over  other  consciousnesses  and  thereby  over  the  infinite 
universe,  over  universal  society.  This  is  what  gives 
to  the  notion  of  right  its  more  than  physical  character. 
Physical  science  has  not,  so  to  speak,  turned  the 
light  of  day  into  the  human  body  and  taken  its 
machinery  apart  piece  by  piece;  hence  it  cannot  logi- 
cally regard  man  as  absolutely  transparent  and  intimately 
understood.  Why  have  we  no  fear  of  breaking  an  auto- 
maton? Because  we  are  familiar  with  all  its  springs, 
and  we  know  that  it  contains  nothing  more.     But  it  is 


200  ALFRED  FOUILLÉE  [Ch.V 

not  so  with  human  consciousness.  Suppose  that,  having 
before  us  the  inanimate  body  of  a  man,  we  cannot 
possibly  say  with  certainty  whether  he  is  dead  or  only 
unconscious;  do  we  dare  to  place  him  at  once  in  the 
grave?  Of  a  conscious  person,  we  may  not  know  of 
our  certain  knowledge  whether  there  is  a  complete 
absence,  or  only  a  lethargy,  of  that  freedom  which  we 
believe  to  be  at  once  the  most  essential  individual 
power,  and  the  power  to  will  universally.  Furthermore, 
even  if  positive  science  had  made  out  the  complete  ana- 
tomy of  the  thinking,  willing,  loving  being,  we  should 
still  have  to  learn  what  being  is,  what  thought  or  con- 
sciousness is;  and  again  the  question  would  arise:  Is  this 
at  bottom  fatality  and  mechanism,  or  is  it  life  and  liberty? 
"The  deep  sorrow  which  we  feel  at  the  death  of  one 
whom  we  have  loved,"  says  Schopenhauer,  "springs 
from  a  feeling  that  there  is  in  every  individual  something 
inexpressible,  which  belongs  to  him  alone,  something 
irreparable:  'Omne  individuum  inefïabile.'  "  Schopen- 
hauer might  have  added:  This  natural  mystery  which 
man  bears  in  his  breast  is  the  metaphysical  foundation 
of  right.  Scientifically,  a  right  is  an  ideal  value  con- 
ferred upon  human  consciousness  as  incomparable  with 
crude  mechanism;  metaphysically,  it  is  perhaps  a  real 
value.  This  simple  perhaps,  this  single  possibility,  this 
place  reserved  for  reasonable  doubt,  and  therefore  for 
reasonable  induction,  this,  to  say  nothing  of  all  positive 
and  scientific  reasons,  would  suffice  to  restrain  us  when 
we  are  disposed  to  trespass  upon  the  consciousness  of 
another.  Thus,  in  spite  of  ourselves,  we  stop  short  before 
our  fellow  man  as  before  an  indefinable  something  which 
our  science  cannot  fathom,  which  our  analysis  cannot 
measure,  and  which,  by  the  very  fact  of  its  being  a  con- 
sciousness, is  sacred  to  our  own  consciousness.  Is  this 
one  of  those  superstitions  which,  according  to  Goethe, 


§149]        METAPHYSICAL  HYPOTHESES  201 

are  the  poetry  of  life;  or  is  it  an  intuition,  on  the  con- 
trary, of  some  fundamental  truth?  In  the  presence  of 
a  conscious  being,  we  experience  what  the  ancients  called 
a  religious  dread,  a  religious  quaking,  a  "horror": 

"Quae  potuit  fecisse  timet." 

§150.  Relation  between  Rights  and  Self -Respect.  This 
metaphysical,  but  entirely  natural  feeling,  of  which  reli- 
gions are  only  the  crude,  anti-scientific  expression  in 
terms  of  the  supernatural,  we  experience  towards  our  own 
selves  ;  we  stop  short,  as  it  were,  before  ourselves,  because 
we  perceive  in  our  own  consciousness  a  kind  of  abyss 
before  which  positive  science  reels.  This  is  the  feeling 
which  we  call  respect  and  which  forms  an  integral  part 
of  our  sense  of  the  right.  From  the  aesthetic  point  of 
view  also,  the  right  is  one  of  those  things  which  awaken 
in  us  the  impression  of  the  subHme,  with  its  two  alter- 
nating emotions  —  a  melancholy  concentration,  and  a 
joyous  expansion  and  pride.  The  infinity  which  dwells 
in  man,  at  least  in  idea,  crushes  us  at  first,  and  then 
exalts  us;  since  it  is  within  our  consciousness,  it  is  in 
some  way  within  us,  it  is  ourselves;  the  universe  is  our- 
selves and  we  are  the  universe.  The  sense  of  the  right 
is  a  kind  of  disinterested  pride;  the  sense  of  the  right 
of  others  is  a  kind  of  disinterested  fear,  which  is  resolved 
into  a  final  sense  of  peace  and  acquiescence,  the  primary 
foundation  of  fraternity  and  universal  society. 

Metaphysical  modesty  is  thus  the  principle  of  moral 
dignity:  Socrates  was  right  in  believing  that  we  are  as 
great  through  the  idea  of  what  we  do  not  know  as  through 
what  we  know.  To  conceive  a  limit  is  also  to  conceive  a 
something  beyond,  to  imagine  if  not  to  know  it. 

§  151.  Science  Ends  Where  Justice  and  Right  Begin — 
in  Doubt.  Perhaps,  indeed,  we  can  frame  a  remote,  in- 
direct, symbolical  conception  of  this  very  depth  as  a 


202  ALFRED  FOUILLÉE  [Ch.V 

reality,  in  some  such  fashion  as  the  astronomie  heaven 
is  a  symbol  of  the  real,  the  unknown  heaven.  Appear- 
ance, after  all,  must  be  related  to  reality  as  the  apparent 
movements  of  the  stars  are  related  to  their  real  move- 
ments. There  is  relative  truth  even  in  the  system  of 
Ptolemy,  although  it  may  be  farther  from  the  truth  than 
the  equally  relative  system  of  Copernicus.  Meta- 
physics is  in  our  opinion  a  hypothetical  speculation,  an 
ideal  prolongation  of  the  lines  which  personal  conscious- 
ness and  science  itself  have  previously  traced,  a  search 
for  their  convergent  direction  and  for  the  focus  in  which 
they  will  coincide.  This  focus  would  be  the  very  founda- 
tion of  nature  —  preeminently  the  natural,  and  not  at  all 
the  supernatural,  which  is  only  its  shadow  projected  on 
the  clouds.  The  indestructibility  of  the  metaphysical 
instinct  proves  that  there  is  something  essential  to  our 
mental  organization:  man  is  a  metaphysical  animal. 
If  this  is  an  illusion,  we  ought  to  be  able  to  show  that 
it  is  a  cerebral  illusion  merely,  and  to  reveal  its  source. 
No  such  proof  has  been  produced.  It  has  never  been 
demonstrated  that  beyond,  or  rather  within,  what  we 
feel  and  know,  or  can  feel  and  know,  there  is  nothing  in 
an  absolute  sense.  At  all  events  we  have  the  idea  of 
this  inmost  something  —  an  indestructible  and  fascinating 
idea  which  draws  us  on  in  quest  of  new  and  more  or  less 
transitory  symbols  by  which  to  express  the  eternal 
mystery  of  the  universe  and  of  consciousness.  Science 
ends  in  doubt,  and  this  very  doubt  is  the  beginning  of 
the  metaphysical  hypothesis  of  the  universe — an  hypothe- 
sis which  is,  in  fact,  only  an  induction  founded  on  knowl- 
edge itself  and  on  the  data  of  consciousness,  to  the  com- 
plete exclusion  of  ontology.  Doubt  is  thus  the  beginning 
of  morals  and  of  right  properly  so-called.  The  limi- 
tation of  knowledge,  as  we  have  seen,  is  expressed  in  con- 
duct by  the  limitation  of  an  intelligent  and  conscious 


§151]        METAPHYSICAL  HYPOTHESES  203 

activity  in  the  presence  of  other  intelligent  and  con- 
scious activities;  whence  we  have  right  and  justice. 
Beyond  those  confines  there  begins,  with  metaphysical 
and  cosmological  speculation,  that  kind  of  moral  specu- 
lation which,  according  to  one's  practical  system,  is 
either  egoism  or  charity.  Egoism  is  the  symbolical 
affirmation  of  the  radical  division  or  opposition  of  beings 
or  consciousnesses,  a  moral  atomism,  in  short;  fraternity 
is  the  symbolical  affirmation  of  a  radical  union.  These 
two  are  working  hypotheses  concerning  what  we  do  not 
know,  concerning  the  fundamental  principle  of  the  uni- 
verse and  of  the  individual.  But  justice,  which  can  only 
practically  affirm  our  ignorance  of  the  essence  of  things 
and  of  consciousness,  is  infinitely  less  hypothetical;  it 
has,  so  to  speak,  the  sincerity  of  a  thought  in  harmony 
with  itself,  in  practice  as  well  as  in  theory.^ 

^Espinas,  an  extreme  partisan  of  naturalism,  has  said:  "For  the 
naturalists,  rights  are  consequent  upon  social  action;  they  are  a  matter  of 
opinion.  We  think  that  there  is  nothing  in  the  personal  constitution 
of  man  at  his  birth  upon  which  the  right  to  life,  to  subsistence,  to  pos- 
sessions, etc.,  can  be  based.  We  will  go  so  far  as  to  say  that  if  there  is 
nothing  transcendental  in  the  depth  of  human  consciousness,  an  infant 
could  have  no  rights  but  for  men,  for  civilized  men;  his  title  to  moral 
personality  depends  on  the  measure  in  which  rights  are  recognized  in  the 
social  environment  where  he  makes  his  appearance.  If  a  female  child 
is  born  into  certain  savage  tribes,  her  rights  consist  in  performing  all 
the  hard  tasks,  in  eating  roots,  and  in  being  beaten;  if  a  male  child  is 
born  into  a  royal  family,  he  has  the  power  of  hfe  and  death  over  the 
other  members  of  the  tribe.  Society  does  not  limit  itself  to  defining 
and  safeguarding  rights;  it  constitutes  them,  since  rights  are  nothing 
more  than  the  value  attributed  to  a  human  being  in  a  given  country." 
(See  the  remarkable  studies  in  RP  which  Espinas  has  devoted  to  a 
criticism  of  our  "Science  Sociale  Contemporaine,"  October- November, 
1882,  p.  514.) 

In  the  passage  just  cited,  which  expresses  excellentlj'  the  point  of  view 
of  pure  naturalism,  Espinas  does  not  distinguish  between  rights  "de 
facto,"  granted  by  a  society  to  its  members,  and  rights  properly  so- 
called,  or  moral  rights;  he  reduces  the  second  to  the  measure  of  the  first. 
According  to  his  view,  we  ought  to  "go  as  far";  but  we  do  not  think 
so,  for  we  leave  open  the  question  of  the  irreducible  basis  of  conscious- 
ness. If  we  call  transcendent  whatever  exceeds  our  empirical  and  phen- 
omenal knowledge,  then  something  may  exist  in  human  consciousness 
which  is  transcendent  in  this  sense.  Sensations  of  sight  are  transcendent 
for  the  ear,  transcendent  also  for  the  blind;  sensations  of  sound  are 


204  ALFRED  FOUILLÉE  [  Ch.  V 

§  152.  Objective  Value  of  the  Ideas  of  Freedom  and 
Right.  When  we  raise  the  question  whether  the  idea  of 
freedom  and  of  right  has  an  objective  value  and  corre- 
sponds absolutely  to  reality,  the  problematical  character 
of  the  speculative  solution  does  not  forbid  a  practical  one. 
The  knot  which  thought  cannot  untie  may  be  cut  by 
action,  for  action  cannot  always  and  in  all  cases  remain, 
like  thought,  in  suspense.  Thus  everyone  solves  practi- 
cally, in  his  own  way,  the  fundamental  and  metaphysical 
problem  stated  above,  and  solves  it  affirmatively  or 
negatively  according  to  the  degree  of  force  which  the 
ideas  of  freedom  and  right  have  acquired  for  him.  One 
in  whom  these  ideas  are  intense  and  dominating  em- 
bodies this  belief  to  some  degree  in  all  his  actions,  which 
are  shaped  upon  this  interior  mold.  One,  however, 
whose  conceptions  of  ideal  independence  and  right  are 
only  feeble  and  vague,  doubts  or  denies  their  worth, 
and  his  conduct  becomes  like  a  doubt  itself  in  action  — 
a  visible  denial  of  every  universal  ideal;  and  he  falls 
at  the  same  time  completely  under  the  control  of  ideas 
of  particular  interest  and  material  force, —  so  true  it  is 

similarly  transcendent  for  the  deaf.  The  transcendent  of  the  metaphy- 
sicians is,  as  it  were,  no  more  than  the  transintellectual.  In  this  sense, 
the  transcendent  would  be  no  less  immanent  in  us,  since  it  constitutes 
ourselves.  Furthermore,  the  idea  itself  of  the  transcendent,  if  it  has  a 
meaning,  is  immanent;  it  is  active  within  us  only  as  immanent;  by 
this  idea  we  need  only  understand  that  which  constitutes  ourselves  and 
constitutes  other  beings  also.  But  in  truth  everything  is  immanent. 
We  repeat,  then,  that  the  limilalion  and  the  relativity  of  our  physical 
knowledge  leave  room  for  at  least  the  possibilily  of  a  principle  superior 
to  that  knowledge,  although  within  the  depths  of  consciousness;  and  it 
is  upon  this  limitation  that  there  is  founded,  rationally  and  as  a  last 
resort,  an  abstention  from  unjust  actions,  the  irrationality  of  which 
cannot  be  fully  demonstrated  by  positive  science.  There  is  within 
consciousness  something  with  whose  nature  we  are  unacquainted,  namely, 
consciousness  itself  and  individuality;  moreover,  there  is  in  the  con- 
sciousness an  idea  of  the  universal;  and  this  suffices  to  give  us  practical 
motives  for  refraining  from  actions  which  are  contrary  to  justice,  that  is, 
to  an  equality  of  liberties  —  actions  which  would  amount  to  a  practical 
and  dogmatic  affirmation  of  egoism  and  solipsism  as  final  truth. 


1152]        METAPHYSICAL  HYPOTHESES  205 

that  every  idea  tends  to  produce  an  outer  effect  and  thus 
to  express,  to  incarnate,  to  embody  itself.  From  what- 
ever point  of  view  it  is  regarded,  therefore,  scientifically 
or  metaphysically,  the  idea  of  the  right  does  not  remain 
inefficient  and  inert.  It  has  more  than  the  physical  and 
mechanical  value  attributed  hypothetically  to  man;  it 
has  an  intellectual  and  metaphysical  value,  derived  from 
a  being  capable  of  thought,  able  to  think  of  himself,  of 
others,  of  the  uni\'erse;  able  by  this  means  to  transcend 
himself,  to  concei\'e  of  other  conscious  beings  and  to  love 
them.  In  this  sense,  we  may  say  with  Pascal  that  all 
our  dignity  is  in  our  thought.  This  idea  that  conscious- 
ness has  a  value  which  cannot  be  mathematically  and 
mechanically  computed,  a  value  perhaps  greater  than 
any  given  material  quantity,  in  inseparable  from  a 
spontaneous  feeling  of  desire  or  attraction.  By  that 
intellectual  attraction  in  which  we  recognize  the  in- 
tellectual form  of  the  highest  "altruism"  the  idea  within 
us  subjects  and  subordinates  to  itself  all  our  other 
tendencies  in  proportion  to  its  intensity  and  power  —  as 
a  strong  wind  collects  and  drives  along  what  before  was 
fiying  about  in  di\'erse  and  opposite  directions.  Men  are 
classed,  in  the  metaphysical,  moral,  and  social  hierarchy, 
according  to  the  effective  predominance  in  them  of  the 
idea  of  a  universal  society  of  conscious  beings  and  the 
idea  of  universal  justice,  according  to  the  conformity 
existing  between  their  actual  being  and  this  ideal  of 
being.  And  what  is  true  of  individuals  is  true  of  nations 
also:  they  do  not  live  by  measurable  realities  alone, 
they  live  by  the  ideal.  This  ideal  is  not  an  abstraction; 
rather,  it  symbolizes  the  fundamental  reality,  or  whatever 
it  is  which  unites  all  conscious  beings  in  one  universe. 
In  short,  the  right  springs  into  being  when  the  conscious 
individual,  by  conceiving  others,  becomes  capable  of 
conceiving  the  whole.     The  individual  begins  by  saying 


206  ALFRED  FOUILLÉE  [  Ch.  V 

"I,"  then  "thou"  and  "they,"  and  ends  by  saying  "all"; 
and  thus  is  established  that  universal  relation  of  in- 
dividualities which  constitutes  the  law. 


§  153  ]    A  HARMONIZATION  OF  THEORIES       207 


CHAPTER  VI 

THE     AGREEMENT     OF     THE     THEORY     OF 

IDEAL    RIGHT    WITH    THE    FORCE 

AND   INTEREST  THEORIES 

DETERMINING  WHEREIN  THEORIES  AGREE  —  FORCE 
MUST  ACCOMPANY  RIGHT  —  BUT  RIGHT  MUST  NOT  BE 
IDENTIFIED  WITH  FORCE  —  SUPERIORITY  OF  INTERNAL 
TO  EXTERNAL  FORCE  —  RECONCILIATION  OF  FREEDOM 
AND  HIGHER  INTEREST— THE  POWER  OF  A  LOVE  FOR 
THE  IDEAL— THE  CULT  OF  FREEDOM  —  HARMONY  BE- 
TWEEN IDEAL  RIGHT  AND  EVOLUTION  —  A  SCIENTIFIC 
SYNTHESIS  OF   IDEAS. 

§153.  Determining  Wherein  Theories  Agree.  In  every 
philosophical  or  social  question,  it  is  important  to  de- 
termine precisely  the  points  wherein  the  various  doc- 
trines agree,  as  well  as  those  at  which  divergency  and 
opposition  arise.  Is  not  a  determination  of  the  parts 
common  to  the  most  conflicting  theories  the  best  means 
of  indicating  the  acquisitions  of  knowledge  and  of  supply- 
ing its  deficiencies?  Let  us  therefore  look  for  common 
points  in  the  naturalistic  and  the  idealistic  doctrines. 
We  shall  see  that  the  theory  of  ideal  rights  and  of  force- 
ideas  leaves  a  fair  share  to  the  other  theories,  completes 
rather  than  destroys  them,  and  reconciles  them  finally 
on  a  higher  plane. 

§  154.  Force  Must  Accompany  Right.  The  true  side 
of  those  doctrines  which  are  especially  concerned  with 
power  and  with  mechanism  is  that  the  law  should  not 
be  left  in  the  purely  spiritual  order,  as  a  power  not  of 


208  ALFRED  FOUILLÉE  [Ch.VI 

this  world  and  with  no  physical  force  at  its  disposal. 
Every  right  should  be  capable  of  realizing  itself  externally 
by  means  of  a  true  social  and  political  mechanism  —  a 
kind  of  body  of  which  it  is  the  soul.     To  find  this  external 
protection  for  rights  is  the  essential  problem  of  "social 
mechanics."     Its  positive  and  practical  study  has  been 
too  much  neglected  by  the  French.     After  proclaiming 
the  moral  rights  of  man,  French  theorists  have  too  often 
overlooked  the  fact  that  the  realization  of  these  rights  in 
a  system  of  harmonious  forces,  far  from  being  achievable 
by  authority  in  a  day,  is  the  work  of  the  slowest  and 
most  difficult  of  the  sciences.     They  have  also  forgotten 
thatmoralrights  should  not  voluntarily  disarm  themselves 
by  renouncing  material  force.     In  general,  we  hold  force 
too  cheap.     Have  we  not  seen  individuals  here  in  France 
who  look  continually  to  the  constant  care  of  the  State 
for  the  material  maintenance  of  their  rights,  and  who 
have  repeatedly  renounced  their  external  freedom  for  the 
benefit  of  a  single  man  ?    What  have  we  had  in  exchange  ? 
A  simple  declaration  of  inalienable  rights,  inscribed  in 
the  preambles  of  various  constitutions;   a  declaration 
of  Platonic  love,  deprived  of  all  virtue  by  the  remainder 
of  the  constitution;  a  contradictory  system  beginning 
with  :   I  desire  your  freedom,  and  ending  in  :   You  are  my 
prisoner.     Pascal  stated  in  forcible  terms  the  real  prob- 
lem of  rights  when  he  said:    "Justice  without  force  is 
impotent,  force  without  justice  is  tyrannical.     Therefore 
justice  and  force  must  be  united,  and  to  that  end,  what- 
ever is  just  must  be  strong  and  whatever  is  strong  must 
be  just."     The  French  school  of  moralists,  economists, 
and  politicians  in  our  day  has  dwelt  too  much  on  pure 
rights,  without  a  sufficient  effort  after  a  means  of  chang- 
ing abstract  idea  into  material  force.     Upon  this  point  we 
are  idealists,  excessive  and  chimerical  ;  and  the  doctrine 
of  rights  most  popular  in  France  is,  in  its  basic  principles, 


§  154  ]     A  HARMONIZATION  OF  THEORIES      209 

a  pure  idealism,  too  abstract  and  too  vague.  Also  one 
of  the  true  things  in  the  socialistic  theories,  however 
Utopian  they  may  be,  is  their  insistence  not  only  upon 
the  recognition  of  rights,  but  also  upon  effective  power  to 
exercise  them.  He  who  speaks  of  rights  speaks  of 
freedom,  consequently  of  power,  consequently  of  force.  ^ 
§  155.  But  Right  Must  Not  be  Identified  with  Force. 
But  if  it  be  true  that  force  should  accompany  right  to 
guarantee  it  and  to  give  it  effective  power,  right  is  never- 
theless a  different  thing  from  the  guaranty  of  right.  We 
must  neither  materialize  right,  nor  idealize  it  to  excess. 
We  have  seen  one  of  the  most  striking  examples  of  the 
former  tendency  in  Jhering's  theory  of  "Der  Kampf  um's 
Recht.  "^  According  to  this  author,  as  will  be  remem- 
bered, not  only  should  right  meet  force  with  force  in  case 
of  necessity,  but  force  and  conflict  are  of  its  very  essence. 
"Conflict  is  no  stranger  to  the  right.  The  conception  of 
right  is  not  a  logical  conception;  it  is  a  pure  conception 
of  force.  .  .  .The  end  of  the  right  is  peace,  and  its  means 
to  peace  is  conflict,  is  war,  is  force."  We  see  with  what 
metaphysical  subtlety  Jhering  makes  the  use  of  force  an 
integral  "element"  of  the  right,  of  which  it  is  only  the 
last   resort  and   makeshift.     From   the   fact   that   one 

»  One  may  take  in  a  good  sense  what  Louis  Blanc  wrote  in  1839: 
"The  idea  of  right,  abstractly  considered,  is  the  mirage  which  since 
1789  has  held  the  people  under  an  illusion.  These  abstract  rights  are 
the  lifeless  metaphysical  defense  which  has  taken  the  place  of  the  living 
defense  which  was  the  people's  due.  Rights,  pompously  and  bootlessly 
proclaimed  in  charters,  served  only  to  mask  whatever  was  unjust  in  the 
inauguration  of  a  system  of  individualism,  and  whatever  was  barbarous 
in  the  abandonment  of  the  people.  So  let  us  say,  once  for  all,  freedom 
consists  not  only  in  the  rights  accorded,  but  in  the  power  given  to  man 
to  exercise  and  develop  his  faculties,  under  the  rule  of  justice  and  the 
safeguard  of  formal  law."  Guizot  himself  has  said:  "Liberties  are 
nothing  if  they  are  not  also  rights,  and  rights  themselves  are  nothing 
if  they  are  not  also  guaranties."  Only  the  socialists  confuse  the  power 
to  realize  by  one's  own  effort  what  one  believes  to  be  the  best,  and  the 
effective  realization  entrusted  to  the  State.  What  should  be  secured 
to  the  individual  is  the  power,  and  not  the  realization  itself. 

2  Translated  into  French  by  Meydieu,  Paris  1875. 


210  ALFRED  FOUILLÉE  [Ch.VI 

negative  may  cancel  another,  he  infers  that  negation 
is  a  part  of  every  affimiation;  from  the  fact  that  "liti- 
gation, which  is  only  a  new  form  of  combat,"  can  re- 
establish an  injured  right,  he  concludes  that  the  lawsuit 
is  a  part  of  right  itself;  thus  we  have  a  system  con- 
structed from  lawsuits  and  quarrels,  and  war  raised  to 
the  level  of  a  theory.  The  right,  instead  of  confining 
itself  to  repelling  the  attack,  becomes  itself  the  aggressor, 
the  attacking  party.  Is  this  not  to  confuse  the  "essence" 
of  right  with  its  own  limitation  and  imperfection? 
Suppose  that  all  men  do  respect  each  other's  freedom  and 
conscience,  will  rights  cease  to  reign  because  there  is  an 
end  of  strife  and  force?  History  shows  us,  on  the  con- 
trary, that  the  existence  of  the  right  is  the  end  of  strife. 
Slavery,  a  violation  of  right,  has  brought  long  wars  in  its 
train;  but  since  respect  for  the  human  being  has  led  to  its 
abolition,  right  rules  in  peace,  and  force  has  no  further 
reason  for  existence.  It  has  been  the  same  with  religious 
wars;  it  was  not  right  and  tolerance,  but  injustice  and 
intolerance,   which   lit  the  fires  of  the   Inquisition.^ 

§  156.  Superiority  of  Internal  to  External  Force.  The 
future  of  endless  conflict,  of  litigation  and  war,  which 
such  a  theory  opens  up,  is  not  the  real  future.  Thanks 
to  the  progress  of  our  civilization,  force  tends  from  with- 
out to  within,  seeking  an  inward  concentration,  and  a 
transformation  within  the  individual  into  the  higher 
form  of  intelligence.  Do  not  ideas  move  mankind 
better  than  any  external  means?  The  greatest  force 
without,   the  greatest  knowledge  within,   such   is   the 

3  Jhering's  theory  is  only  an  unfortunate  exaggeration  of  one  of  Kant's 
points  of  view,  which  made  the  idea  of  constraint  an  element  in  that  of 
right.  But  the  power  of  constraint  which  should  accompany  a  right 
is  not  the  right  itself.  Furthermore,  the  power  to  constrain  is  not  neces- 
sarily effective  constraint  or  force  in  operation;  it  is  only  available 
force,  ready  to  act  in  case  of  necessity.  Power  is  one  thing,  its  use  is 
another.  Use  should  diminish  at  the  same  rate  at  which  power  in- 
creases. In  the  language  of  mechanics,  the  power  gains  all  that  is  lost 
by  the  resistance  made  to  it,  or  which  it  is  compelled  to  make,  since 
this  resistance  is  wasted  energy. 


§166]    A  HARMONIZATION  OF  THEORIES       211 

highest  degree  of  power  in  a  society.  The  most  perfect 
society  is  that  in  which  there  is  the  least  external,  violent 
interaction  of  its  citizens  one  upon  another,  and  the 
highest  degree  of  internal,  individual  activity.  The  ideal 
would  be  an  absorption  of  all  coercive  energy  in  sponta- 
neous force,  of  all  external  resistance  in  the  innermost 
impulses  of  consciousness.  Intellectual  power,  conscious 
thought,  would  thus  replace  physical  power;  and  for 
right  to  become  a  reality,  it  would  be  enough  that  it 
should  be  an  idea. 

If  this  be  true,  should  not  the  naturalistic  school 
finally  agree  with  the  idealistic,  and  may  we  not  interpret 
their  doctrine  in  a  higher  sense  which  reconciles  it  with 
our  own?  Freedom  may  be  regarded  as  living  force 
in  its  very  essence.  ^  Now  what  is  the  most  indispen- 
sable thing  in  mechanics?  It  is  force;  wherever  force 
is  stored  up,  as  heat  lies  latent  in  a  combustible,  there 
is  value  proportionate  to  the  intensity  of  that  force 
itself.  Now  in  our  world  the  principal  force  is  man,  and 
man  is  capable  of  thought  and  volition.  Thought  is  an 
inner  force,  superior,  even  mechanically,  to  all  external 
forces,  which  it  assimilates  and  turns  to  its  own  ends. 
There  is  no  machine  comparable  to  the  human  brain, 
for  it  is  the  source  of  all  other  mechanisms,  and  it  holds 
within  itself  a  promise  of  the  transformation  of  the  globe 
through  knowledge.  Thought,  in  its  turn,  is  only  the 
will  in  action,  taking  cognizance  both  of  its  own  power 
and  of  external  resistances,  and  calculating  the  relation 
of  each  to  each.  It  is  peculiarly  important,  then,  for 
the  development  of  power  and  knowledge,  that  there 

*  He  who  speaks  of  force  speaks  of  an  activity  capable  of  manifesting 
itself  externally  in  visible  motion,  internally  in  that  invisible  impulse 
which  is  thought.  Now  activity  is  represented  psychologically  only 
by  will  and  desire,  wherein  we  seize  our  own  power  in  action.  If  to  live 
is  to  act,  to  act  is  to  will.  Freedom  thus  understood  is  the  basis  of  being  and 
of  life  itself  ;  it  is  life  regarded  as  tending  to  perpetuate  itself  and  to  extend 
itself  indefinitely;  it  is  being,  considered  in  its  aspiration  towards  the 
infinite;  in  other  words  it  is  conscious  force,  active  and  progressive. 


212  ALFRED  FOUILLEE  [  Ch.  VI 

should  be  forces,  conscious  wills,  as  vigorous,  as  ardent, 
as  eager  for  progress  as  possible;  and  the  sole  means  to 
that  end  is  to  free  the  conscious  will  of  its  fetters,  whether 
material  or  moral,  to  abandon  it  to  its  spontaneous 
impulses,  to  its  essentially  energetic  and  progressive 
nature,  and  consequently  to  its  natural  freedom.  In 
this  sense  one  may  say:  "Yes,  right  is  power,  but  the 
supreme  power  is  freedom." 

§  157.  Reconciliation  of  Freedom  and  Higher  In- 
terest. Freedom  and  higher  interest  may  be  likewise 
reconciled.  The  interest  of  a  being  is  to  be,  as  much 
as  possible,  to  be  indefinitely  and  without  limitation, 
and  by  that  very  fact  to  act  and  to  enjoy  in  ever  increas- 
ing measure.  But  the  maximum  of  freedom  involves  the 
maximum  of  conscious  action  and  of  enjoyment;  thus 
a  utilitarian  society  should  be  as  watchful  not  to  let 
the  hearth  of  freedom  and  consciousness  grow  cold  as  the 
ancients  were  to  keep  alive  by  night  and  by  day  the 
fire  which  was  to  furnish  them  light  and  heat.  This  fact 
was  recognized  by  the  Benthams,  the  Mills,  the  Grotes, 
and  the  Spencers. 

§  158.  The  Power  of  a  Love  for  the  Ideal.  A  love  for 
the  ideal,  seemingly  so  far  removed  from  the  useful,  but 
without  which  there  is  no  true  freedom  of  the  mind,  is 
itself  among  the  most  useful  resources  of  the  intelligence 
and  the  will;  in  ideas,  in  science,  and  in  art,  nothing  is 
more  necessary  than  the  superfluous.  An  exclusive 
attentiveness  to  practical  results  is  Americanism,  which 
has  had  its  hour  among  the  youthful  peoples  of  a  new 
continent,  chiefly  occupied  in  earning  a  livelihood,  but 
which  would  be  dangerous  for  England  and  for  Germany 
as  well  as  for  France.^ 

5  Germany  itself,  indeed,  has  experienced  attacks  of  this  malady. 
This  is  what  was  recently  deplored,  as  we  have  seen,  by  Bois-Reymond, 
who  made  an  eloquent  plea  for  the  rights  of  the  ideal.  "It  must  be 
confessed,"  he  said,  "that  even  among  ourselves  Atnericanism  has  made 
alarming  progress."     (Loc.  cit.) 


§  159  ]   A  HARMONIZATION  OF  THEORIES       213 

§  159.  The  Cult  of  Freedom.  Zeal  for  the  ideal  is  not 
fundamentally  different  from  zeal  for  freedom,  for  it  is  by 
disinterested  devotion  to  ideas  that  the  mind  is  set  free. 
The  sordid  pursuit  of  material  power  or  interest  is 
self-enslavement.  The  idea  alone,  said  Plato,  makes 
the  wings  of  thought  to  grow.  Thus,  even  if  we  must 
assign  a  rank  to  freedom  and  consciousness  in  the  hier- 
archy of  forces  and  interests,  as  in  that  of  intellectual 
and  moral  goods,  freedom  is  essentially  ambitious  and 
cannot  content  itself  with  an  inferior  place;  it  is  in  the 
foremost  rank  or  in  none  at  all.  True  practical  liberty 
is  indeed  that  which  inevitably  tends  to  transcend  all 
limits,  to  rise  above  every  subordinate  rank,  every  in- 
ferior condition.  Liberty  is  the  immortal  ambition  of 
a  being  who,  conceiving  the  universe,  feels  himself 
made  for  progress. 

§  160.  Harmony  between  Ideal  Right  and  Evolution. 
The  doctrine  of  ideal  right,  as  we  have  set  it  forth,  is 
equally  reconcilable  with  that  of  evolution,  whether 
this  is  regarded  from  Hegel's  dialectical  point  of  view 
or  from  the  biological  point  of  view  of  Spencer  and 
Darwin.  But  logical  and  dialectic  determinism  must 
receive  into  its  bosom  the  idea  and  the  influence  of 
freedom,  such  as  we  have  shown  it  to  be.  Moreover, 
it  must  be  recognized  that  this  idea  outstrips  and  excels 
the  facts,  judges  them  instead  of  accepting  their  judg- 
ments, rules  them  instead  of  merely  summing  them  up, 
even  produces  them  in  part  instead  of  being  their  abstract 
result.  In  our  view,  it  is  not  for  the  idea  to  worship 
the  fact,  but  for  the  fact  to  worship  and  serve  the  idea. 
As  for  the  biological  point  of  view,  we  accept  everything 
positive  which  can  be  said  concerning  the  social  organism 
and  its  laws;  we  believe  that  the  evolution  of  the  social 
life,  by  the  play  of  forces  and  interests,  and,  we  must  add, 
of  ideas,  realizes  an  indefinite  approximation  to  the  right. 


214  ALFRED  FOUILLEE  [  Ch.  VI 

In  a  word,  we  reject  nothing  in  the  naturalistic  or  ideal- 
istic doctrine,  at  any  rate  nothing  positive;  but  above 
the  laws  of  force,  of  interest,  of  life,  of  thought,  we  set 
up  the  problematic  notion  of  an  activity  which  contains 
the  very  principle  of  motion,  of  life,  of  thought,  and 
which  is  thus  the  root  of  consciousness.     Even  though 
we  do  not,  like  Spencer,  leave  the  idea  of  the  unknowable, 
or  rather  of  fundamental  consciousness,  inert  and  im- 
potent, outside  all  moral  or  juridical  influence;  neither 
do  we,  on  the  other  hand,  like  the  author  of  "The  Practi- 
cal Reason,"  make  of  this  idea,  by  a  kind  of  moral  or 
juridical   absolutism,    a   mysterious   imperative,   an   en- 
tirely formal  and  despotic  law.     We  strive  rather  to 
maintain  between  speculation  and  action  the  harmony 
compromised  by  Kant.     To  this  end  we  limit  empirical 
thought  and  empirical  conduct  by  the  same  boundary, 
by  the  same  idea,  namely,  that  of  consciousness  incom- 
prehensible to  objective  knowledge  ;  and  by  extending  this 
same  necessary  limit  ^  to  all  conscious  and  active  beings 
we  constitute  the  right.     As  to  the  rest  of  the  moral 
ideas,  let  us  understand  them  for  what  they  are,  which 
means  holding  a  speculative  or  a  practical  hypothesis 
concerning   the   unknowable   content   of   consciousness 
and  of  existence.     And  there  are  two  possible  hypotheses  : 
first,  the  content  of  being  and  of  consciousness  is  love 
of    self — from    this    springs    exclusive    utilitarianism; 
second,  the  content  of  being  and  of  consciousness  is  the 
love  of  all  —  hence  the  doctrine  of  charity.     But  we  im- 
pose upon  utilitarianism  and  upon  charity  the  same 
speculative    and    practical    limitation:  first,    restriction 
of  empirical  affirmation  for  some,  and  of  metaphysical 
affirmation   for  others;  second,   restriction  of  activity 
for  all,  in  short,  justice  in  thought  and  in  act,  Xoyw  koI  epyo). 
Intolerance   and    absolutism,   whether   in   the   form   of 
egoism  or  of  charity,  thus  give  place  to  the  liberalism 
•  See  the  preceding  chapter. 


§  160  ]   A  HARMONIZATION  OF  THEORIES       215 

of  rights,  founded  on  a  common  limitation  of  liberties 
and  consciousnesses,  which  is  the  necessary  condition 
of  their  union  in  society. 

§  161.  A  Scientific  Synthesis  of  Ideas.  By  this 
building  up  of  all  these  doctrines  in  successive  courses, 
into  a  single  edifice,  we  establish  not  an  arbitrary  eclecti- 
cism, but  a  scientific  and  metaphysical  synthesis,  in  which 
each  point  of  view  has  its  definite  and  demonstrated 
place.  The  laws  of  force  derive  their  support  from  the 
laws  of  interest,  those  of  interest  from  the  laws  of  life 
and  of  the  social  organism,  those  of  life  from  the  laws 
of  thought  and  of  scientific  determinism,  those  of  thought 
and  determinism  from  an  ideal  of  freedom  and  universal 
will,  whose  reality  is  still  a  problem  for  us,  but  which, 
nevertheless,  in  limiting  our  egoism  by  equal  justice  to  all, 
makes  the  final  diffusion  of  goodness  possible.  In  the 
universal  equation,  the  naturalists  completely  ignore 
the  inevitable  and  insoluble  x,  that  x  which  is  involved 
in  the  very  fact  of  consciousness.  We  show  that  this 
X  has  a  determinable  restrictive  influence  upon  thought 
and  action,  and  that  its  positive  value  can  be  hypotheti- 
cally  inferred  by  a  prolongation  of  the  entire  series  of 
phenomena  in  the  observed  direction.  We  believe  that 
we  thus  reconcile  Kantianism  properly  understood  and 
evolutionism  properly  understood,  and  these  are  to-day 
the  only  positions  which  it  is  possible  for  thought  to  take. 
These  positions  are  not  in  our  opinion  mutually  exclusive, 
but  on  the  contrary  they  are  mutually  complementary. 
Evolutionism  is  the  base  of  the  pyramid,  the  idea  of  a 
mechanically  inexplicable  consciousness  is  its  summit  — 
an  idea  accepted,  indeed,  by  Spencer  himself,  but  left 
inert  by  him  and  confused  with  the  consciousness  of  the 
absolute.  The  far  view  from  this  high  summit  exerts 
a  directive  influence,  in  helping  us  to  get  a  glimpse  at 
least  of  the  central  point  at  which  all  the  visible  lines 
finally  converge. 


216  ALFRED  FOUILLÉE  [Ch.VII 


CHAPTER  VII* 

THE   DIRECTIVE   IDEAS  AND  THEIR   STRUG- 
GLE FOR  EXISTENCE  — THE  FUTURE 
OF  THE   IDEA  OF   RIGHT 

ERRORS  OF  THE  FRENCH  DEMOCRATIC  PHILOSOPHY  — 
PRESENT  NEED  OF  DISCRIMINATION— HARMONIZATION 
OF  POWER,  INTEREST  AND  RIGHT  —  THE  METAPHYSICAL 
TRANSITION  FROM  THE  EGO  TO  THE  NON-EGO  — THIS 
TRANSITION  IS  THE  FOUNDATION  OF  JUSTICE  — SUM- 
MARY OF  THE  THEORY  OF  IDEAL  RIGHT  — THE  IDEAL 
HAS  A  POTENTIAL  REALITY  —  FREEDOM  THE  BASIS  OF 
FRENCH  SOCIAI.  PHILOSOPHY  — THE  EVOLUTION  OF 
IDEAS  —  PRESENT  TENDENCIES  REVEAL  THE  FUTURE  — 
HUMAN  EVOLUTION  WORKS  TOWARD  A  DEFINITE  END  — 
HISTORICAL  EXPRESSION  OF  THE  DOMINANT  IDEA  OF 
THE  FRENCH  —  DEMOCRACY  THE  PRACTICAL  END  OF 
FRENCH  THOUGHT  —  A  PROGRAM   FOR  FRANCE. 

§  162.  Errors  of  the  French  Democratic  Philosophy. 
As  we  have  seen,  rights,  especially  as  represented  by  the 
democratic  philosophy  in  France,  are  from  the  scientific 
point  of  view  only  an  ideal.  The  error  of  that  philo- 
sophy, in  viewing  rights  as  immediate  realities,  is  its 
failure  to  recognize  clearly  its  own  idealism.  It  con- 
stantly speaks  of  natural  rights,  when  it  should  speak 
of  ideal  rights,  for  nature  knows  nothing  of  rights,  which 
appear  only  in  the  thought  of  man.     This  first    error 

*  [This  chapter  =  the  Conclusion  of  Fouillée' s  book.  Four  chapters 
which  immediately  precede,  dealing  with  equality  as  viewed  by  the 
democratic  and  aristocratic  schools,  are  here  omitted. —  Ed.1 


§162]  THE  DIRECTIVE  IDEAS  217 

proceeds  from  a  second:  our  traditional  philosophy 
does  not  see  that  moral  freedom  is  itself  a  pure  idea,  a 
force-idea,  a  becoming,  not  a  present,  completed  reality. 
It  has  moreover  confused  liberty  with  free  will,  the 
common  conception  of  which  is  anti-scientific,  but  which 
is  resolved  by  psychology  into  a  determinism  partly 
unconscious,  but  flexible  and  perfectible.  Finally,  it 
has  not  always  taken  sufficient  account  of  the  superior 
rank  of  ideal  freedom,  which  makes  it  an  end  for  us,  not 
a  mere  means;  it  has  not  rejected  frankly  enough  the 
old  doctrine  by  which  liberty  is  subordinated  to  a  good 
in  itself — to  virtue,  to  truth,  or  to  some  other  absolute 
principle,  the  possession  of  which  is  presupposed.  These 
defects  of  theory  have  brought  practical  defects  in  their 
train  —  a  neglect  of  reality,  of  nature,  of  history,  a 
tendency  to  project  the  future  into  the  present  or  even 
into  the  past,  and  to  confuse  what  will  be  with  what  has 
been  —  too  exclusive  fondness  for  declarations  of  prin- 
ciples and  neglect  of  their  applications,  exaggerated 
disdain  for  interest  and  force,  those  necessary  organs  of 
the  right,  in  short  excesses  of  enthusiasm  joined  to 
lack  of  the  positive  spirit. 

§  163.  Present  Need  of  Discriminatio?i.  The  time 
has  come  to  distinguish  more  sharply  that  which  ought 
to  be  from  that  which  is,  idea  from  material  fact.  If 
one  is  careful  not  to  confuse  the  domain  of  the  ideal  with 
that  of  the  real,  one  will  run  no  risk  of  losing  the  feeling 
for  reality  itself,  and  on  the  other  hand  one  will  be  better 
able  to  bind  the  latter,  little  by  little,  by  a  judicious  use 
of  middle  terms,  to  that  ideal  the  realization  of  which 
one  would  like  to  hasten  forward. 

§  164.  Harmonization  of  Power,  Interest,  and  Right. 
In  our  own  case  we  have  accepted  in  their  positive 
principles  the  three  doctrines  of  power  [puissance], 
interest,  and  right,  and  we  have  superposed  them  in  their 


218  ALFRED  FOUILLÉE  [Ch.VII 

hierarchical  order,  in  a  way  to  make  a  kind  of  construc- 
tion the  several  courses  of  which  support  each  other  from 
base  to  apex.     The  most  material  foundations  of  the 
edifice  have  been  furnished  us  by  the  theory  of  superior 
power,  whether  physical  or  intellectual;  without  force 
nothing  is  possible,  and  everything  which  has  reality 
also  has  force.     From  this  point  of  view  rights  are  the 
maximum    of    individual    power   compatible   with    the 
maximum  of  social  force.     But  the  organization  of  forces 
cannot  be  understood  without  that  of  interests,  and  here 
the  Utilitarian  philosophy  takes  its  stand  ;  according  to  it, 
rights  are  the  maximum  of  individual  power  compatible 
with  the  maximum  of  social  interest.     There  are  two 
forms  of  the  Utihtarian  philosophy  itself;  the  one,  too  in- 
dividualistic and  atomistic,  regards  society  as  an  aggre- 
gation of  individuals  each  one  seeking  his  own  interest; 
the  other,  more  biological  and  evolutionist,  considers 
society  as  a  living  organism  subject  to  the  universal 
laws    of    evolution.     The    biological    and    evolutionist 
point  of  view  appears  to  us  much  more  lofty  than  that 
of  Hobbes,  or  even  of  Bentham.     Indeed,  it  is  easy  to 
reconcile  forces  and  interests;  for  they  are  mutually 
complementary,  or  rather  they  are  the  same  thing  under 
different  aspects,  the  one  external,  the  other  internal.^ 
It  is  not  so  easy  to  reconcile  the  pure  idea  of  right  with 
the  other  two  principles;  it  would  e\'en  have  seemed 
impossible  to  us,  as  it  did  to  the  historical,  dialectical, 
and  Positivist  schools,  if  to  these  separate  principles 
we  had  not  assigned  separate  domains.     As  we  have 
previously  said,  for  us  the  domain  of  rights,  properly 
so-called,  is  the  ideal;  the  domain  of  forces  and  of  in- 
terest is  reality.     It  is  by  pure  ideas,  the  highest  that 

1  One  is  relative  to  what  thie  metapliysicians  call  the  "category  of 
causality  and  mechanism,"  the  other  to  that  of  "immanent  finality  and 
organism." 


§  164 1  THE  DIRECTIVE  IDEAS  219 

may  possibly  be  conceived,  those  of  individual  freedom 
and  universal  society,  that  the  structure  is  completed. 
Force  and  interest  without  right  would  be  life  without 
an  ideal;  rights  without  force  or  interest  would  be  the 
ideal  without  life.  But  in  fact,  the  ideal  is  itself  a  force, 
since  it  moves  humanity,  and  may  move  to  some  extent 
the  world  itself;  it  is  also  an  interest,  since  thought  has 
constant  need  of  it  and  it  is  the  perpetual  object  of  desire. 
It  is  for  this  very  reason  one  of  the  factors  of  human 
evolution,  one  of  the  movers  of  the  social  organism,  one 
of  the  most  important  springs  of  the  conscious  life. 
Thus  the  theory  which  we  are  proposing  links  the  others 
together;  on  its  positive  side  it  is  naturalism  and  ideal- 
ism at  the  same  time — it  preserves  both  all  the  facts  and 
all  the  ideas  for  what  they  are,  but  it  seeks  to  bring  facts 
and  ideas  together,  little  by  little,  until  they  reach  that 
ideal  limit  of  universal  evolution,  where  the  distance 
between  them  is  reduced  to  nothing,  where  supreme 
force  and  supreme  interest  coincide  with  liberty. 

§  165.  The  Metaphysical  Transition  from  the  Ego 
to  the  Non-Ego.  This  limit  is  the  object  of  that  meta- 
physical, or  if  you  please,  cosmological  and  psychological 
speculation,  which  it  is  important  to  leave  open.  The 
fact  that  we  have  a  consciousness  of  the  ego  and  that  we 
conceive  of  other  consciousnesses  but  are  unable  to 
explain  consciousness  itself,  limits  intellectual  dogmatism, 
and  by  that  very  fact,  as  we  have  seen,  limits  also  moral 
and  social  dogmatism,  of  which  injustice  is  one  form. 
This  limitation  or  restriction  is  therefore  the  principle 
of  justice:  "abstine  et  sustine." 

The  various  theories  of  law,  in  order  that  their  several 
conceptions  of  society  may  be  made  realizable  by  the 
individual,  appeal  each  to  a  special  motive;  but  each 
of  these  motives  has  seemed  to  us  inadequate  by  itself. 
Force  alone  cannot  realize  the  social  conception  toward 


220  ALFRED  FOUILLÉE  [Ch.  VII 

which  it  aspires,  nor  can  interest,  nor  abstract  right. 
Hence  we  have  combined,  so  that  each  one  supplements 
the  others,  all  the  motives  and  purposes  which  can  act 
upon  the  will,  which  can,  so  to  speak,  give  practical 
effect  to  the  ideal  of  the  right.  "Be  just,"  let  us  first 
say  to  the  individual,  "  in  view  of  your  own  power  and 
in  view  of  social  power,  which  in  general  cooperate;  be 
just  in  view  of  your  own  and  the  social  interest,  which 
in  general  agree;  but  if  they  should  disagree  still  be 
just,  for  reasons  of  logic  and  science,  for  general,  rational, 
and  scientific  motives,  since  logically,  rationally,  and 
scientifically  the  power  and  the  interest  of  all  are  more 
desirable  than  the  power  and  the  interest  of  one  alone. 
You  are  a  rational  animal,  that  is  to  say,  logical  and 
scientific;  and  hence  you  have  within  you  an  instinct 
for  generalization  through  which  you  comprehend  the 
identity  of  your  own  good  and  another's  in  the  general 
good,  and  the  scientific  superiority  of  this  general  good 
over  your  own  personal  good.  A  =  A,  one  man  =  another 
man,  and  the  good  of  all  men  is  more  than  the  good  of 
one.  From  this  arise  new  motives  which  tend  to  lead 
you  out  of  your  egoism:  first,  sympathy  for  other 
individuals,  which  is  altruism  in  its  true  sense;  second, 
devotion  to  society  as  a  whole,  or  social  devotion,  which 
Clifford  calls  social  piety.  Are  these  various  incitements 
• —  at  once  emotional  and  intellectual,  sensible  and 
logical,  no  one  incompatible  with  naturalistic,  Positivist, 
or  evolutionist  doctrines  —  are  these  still  insufficient  to 
cause  you  to  forget  that  self  whose  egoism  it  is  so  hard  to 
refute  by  any  theory  based  exclusively  on  observable 
facts  and  on  laws  scientifically  demonstrable?  Then 
there  remains  another  point  to  which,  being  human, 
you  cannot  raise  yourself,  but  to  which  science  leads 
you,  for  it  is  the  prolongation  of  science  into  another 
domain;  it  is  the  inetaphysical  or  cosmological  point 


§165]  THE  DIRECTIVE  IDEAS  221 

of  view,  which  is  one  with  the  moral  point  of  view  properly 
so-called.  You  conceive  the  extreme  boundary  of 
positive  science,  the  relativity  of  that  mechanical  and 
physical  science  which  is  a  function  of  your  brain,  its 
impotence  to  seize,  over  and  above  the  fact,  that  objective 
reality  which  your  thought  divines;  more  than  that, 
the  impotence  of  physical  science  to  explain  your  thought 
itself,  your  mere  sensation,  your  consciousness,  your 
real  or  apparent  ego.  The  science  of  nature  is  inadequate 
for  the  interpretation  of  thought  or  even  of  sensation. 
Beyond  the  known  is  the  unknown,  beyond  the  relations, 
are  or  may  be  the  terms  of  the  relations,  beyond  appear- 
ances is  perhaps  reality,  x.  At  any  rate,  beyond  all 
the  relations  grasped  by  consciousness  there  is  conscious- 
ness itself,  that  is  enough.  Without  speaking  of  "abso- 
lute reality,"  of  the  problematical  absolute,  of  which  we 
know  neither  whether  it  is  nor  what  it  is,  there  is  a  reality 
outside  yourself  which  you  are  constantly  affirming, 
and  which  forces  you,  in  a  sense,  outside  of  yourself, 
to  go  beyond  yourself;  this  is  the  reality  of  other  con- 
sciousnesses, other  egos,  other  thinking  or  feeling  beings. 
Thus  do  you  pass  not  only  from  the  ego  to  the  non-ego, 
but  also  from  the  ego  to  other  egos.  Now  this  is  a  meta- 
physical transition  before  the  explanation  of  which  that 
system  of  philosophy  breaks  down  which  the  English 
know  as  solipsism,  that  is,  the  idealism  involved  in  the 
exclusive  affirmation  of  the  self,  a  kind  of  theoretical 
egoism.  There  is  therefore,  deep  down  in  your  thought, 
a  metaphysical  disinterestedness  which  permits  you  to 
conceive  of  other  consciousnesses,  even  an  unlimited 
number  of  them  —  and  of  merely  possible  sensations. 
In  the  depths  of  your  general,  spontaneous  consciousness, 
you  have  at  once,  in  a  sense,  both  an  individual  and  a 
social  consciousness,  a  place,  it  would  seem,  where  you 
are  yourself,  and  where  you  enter  into  others.     You 


222  ALFRED  FOUILLEE  [Ch.VII 

are  an  individual  and  you  are  society;  you  are,  or  you 
appear  to  be,  personality  and  impersonality;  you  are 
yourself  and  the  universe. 

§  166.  This  Transition  is  the  Foundation  of  Justice. 
Such  is  the  metaphysical  problem  before  which  physical 
science  succumbs;  it  is  a  point  of  interrogation  standing 
at  the  end  of  every  formula  of  the  mechanism  of  nature. 
Every  metaphysical  cause  and  motive  which  can  act  upon 
the  moral  being  has  its  origin  in  this  problem,  and  man,  by 
the  fact  that  he  can  state  it,  though  he  cannot  solve  it, 
has  a  metaphysical  nature.  In  speculation  your  thought 
necessarily  propounds  this  problem;  in  practice  every 
question  of  justice  and  right  implies  its  recognition,  a 
recognition,  both  theoretical  and  practical,  of  the  limi- 
tation of  egoism.  If  you  are  unjust,  you  act  as  if  your 
ego  were  all,  as  if  the  ego  of  others  were  completely 
separated  from  yours,  outside  your  own,  a  foreign  enemy. 
An  injury  to  another  is  a  practical  affirmation  of  some- 
thing which  you  really  do  not  know  and  have  no  right 
to  afifirm  :  egoistic  atomism,  as  the  last  word  of  the  uni- 
verse. Injustice  is  completely  anti-scientific,  anti- 
metaphysical,  anti-social,  and  anti-moral.  Hence  ration- 
ally, scientifically,  metaphysically,  socially,  and  morally, 
egoism  has  a  legitimate  limit.  Since  this  limit  is  the 
same  for  all,  the  consequence  is  an  equal  limitation  of 
individual  wills,  practically  expressed  in  the  equal 
freedom  of  all.  And  from  the  metaphysical  and  moral 
point  of  view,  this  limitation  is  the  ultimate  foundation 
of  rights.  ^  Whether  you  take  the  one  side  or  the  other, 
you  may  be  egoistic  or  disinterested  as  you  choose,  with- 
out violating  justice  and  right  properly  so-called.  Then 
you  pass  from  abstention  to  action,  from  the  point  of 
view  of  a  purely  critical  philosophy,  which  simply  recog- 
nizes the  limit  of  thought,  to  a  constructive  metaphysics 

2  See  above,  part  ii,  ch.  v. 


§166]  THE  DIRECTIVE  IDEAS  223 

which  announces  or  conjectures  a  solution  upon  the 
basis  of  things.  This  metaphysics  takes,  according  to 
its  system,  either  the  part  of  egoism  or  that  o(  fraternity 
as.  the  radical  and  essential  principle.  But  the  domain 
of  egoism,  like  that  of  devotion  and  fraternity,  finds  its 
limit  in  the  rule  of  justice  which  must  be  recognized  and 
accepted  alike  by  all.  Hence  the  breaking  down  of  all 
absolutism  and  all  dogmatism,  whether  in  thought  or  in 
action.  We  must  begin  by  putting  in  practice,  "Bear 
and  forbear,"  which  is  the  law  of  limitation,  before  obey- 
ing the  precept  "Love  and  act,"  which  is  the  law  of 
expansion.  The  dogmatism  of  charity  is  as  inconsistent 
with  rights  as  the  dogmatism  of  the  egoist.^ 

§  167.  Summary  of  the  Theory  of  Ideal  Right.  In 
brief,  everything  is  bound  together  by  the  doctrine  of 
ideal  right  as  we  understand  it;  everything  is  logically 
deduced,  and  can  be  summed  up  in  more  abstract  terms, 
in  the  following  formulae,  the  development  of  which  we 
have  given  above  : 

(1)  Our  point  of  departure  in  experience  is  conscious- 
ness itself,  which  conceives  of  itself,  of  other  conscious- 
nesses, and  of  the  whole  world,  and  consequently  has,  as 
a  whole,  an  individual  character  and  a  universal  bearing. 

(2)  Consciousness  comprehends  its  own  relativity  as 
a  means  to  knowledge,  for  it  cannot  adequately  explain 
either  its  own  nature  as  the  thinking  subject,  or  the 
nature  of  the  object  of  its  thought,  or  the  transition 
from  the  subjective  to  the  objective.  On  this  is  based 
the  principle  of  the  relativity  of  knowledge. 

(3)  This  principle  is  rationally  restrictive  of  theoreti- 
cal egoism. 

(4)  Consciousness  arrives,  by  projecting  itself  out- 
ward, at  the  problematical  conception  of  a  positive 
ideal  of  individual   Hberty  and   universal  society;  this 

'  See  above,  part  ii,  ch.  v. 


224  ALFRED  FOUILLÉE  [Ch.VII 

ideal,  at  once  cosmological,  social,  and  moral,  is  rationally 
persuasive. 

(5)  A  new  fact  of  experience  then  comes  in:  the 
tendency  of  the  ideal,  and,  more  generally  speaking,  .of 
directive  ideas,  oi  force-ideas,  to  realize  themselves. 

(6)  Pure  right  then  appears  as  the  rationally  higher 
value  belonging  to  the  universal  ideal  of  a  free  union  of 
consciousnesses.  As  an  ideal  restrictive  of  egoistic 
absolutism,  this  conception  is  the  basis  of  justice  or  law 
properly  so-called  ;  as  a  persuasive  ideal,  it  is  the  foun- 
dation of  fraternity. 

(7)  External  liberty  is  deduced  from  the  necessity 
of  insuring  to  each  his  internal  spontaneity,  the  self- 
driving  evolution  of  his  consciousness  —  an  evolution 
with  which  the  use  of  force  or  of  absolutism  would  be 
inconsistent. 

(8)  The  limitation  of  this  external  freedom,  in  the 
presence  of  others,  is  necessary  as  a  consequence  of  the 
limitation  and  of  the  relativity  of  intelligences,  which 
excludes  individual  absolutism. 

(9)  The  equality  of  external  liberties  and  their  mutual 
limitation  by  law,  whence  comes  equality  of  civil  and 
political  rights,  is  deduced  in  its  turn  from  freedom  itself; 
for  all  inequality  is  necessarily  a  diminution  of  freedom 
to  the  advantage  of  a  few  privileged  persons.  Moreover, 
equality  is  also  a  deduction  from  the  limit  imposed 
on  all  consciousnesses  equally  by  the  irreducible  foun- 
dation of  consciousness  itself  and  of  reality. 

(10)  Progressive  equalization  of  economic  and  natural 
conditions  in  human  society  is  a  final  consequence 
brought  about  by  nature  itself  and  by  social  progress. 

(11)  Our  theory  reconciles  the  idea  of  freedom  with 
those  of  superior  power  and  higher  interest.  The  con- 
crete and  complete  right,  at  once  real  and  ideal,  becomes 
the  maximum  of  freedom,  equal  for  all,  which  is  compatible 


§1671  THE  DIRECTIVE  IDEAS  225 

with  the  maximum  of  freedom,  force,  and  interest  for  the 
social  organism. 

Such  are  the  principal  links  in  a  close  series  of  deduc- 
tions in  which  we  believe  there  is  no  break  of  continuity. 
Harmony  is  thus  established  between  naturalism  and 
idealism,  between  the  scientific  view  of  evolution  and  the 
metaphysical  view  of  the  consciousness  inexplicable  to 
itself.  Spencer  failed  to  derive  any  moral  consequences 
from  this  latter  point  of  view;  after  leaving  our  knowl- 
edge of  the  explicable  dependent  on  an  inexplicable 
principle,  for  which  he  gives  a  formula  that  is  all  too 
transcendental,  he  makes  no  further  use  of  this  principle 
in  his  moral  and  juristic  theory.  This  shows,  I  think, 
an  astonishing  inconsistency  in  his  own  system.  While 
we  do  not  pretend  to  find  support  for  the  philosophy 
of  rights  in  what  would  thus  by  definition  be  unknowable 
and  transcendental,  it  is  necessary,  as  we  have  already 
shown,  for  the  idea  itself  of  the  enigma  immanent  in 
consciousness  to  restrain  and  limit  purely  material 
purposes  and  motives.  On  the  other  hand,  Kant  has 
drawn  from  his  transcendental  ii7ikno'wahle  a  practical 
dogmatism,  a  kind  of  moral  absolutism  which  seems  to 
me  to  contradict  the  true  results  of  his  speculative 
critique.  I  think  that  I  have  restored  to  the  limitative 
principle  its  true  value  by  avoiding  altogether  the  moral 
dogmatism  of  Kant  and  the  kind  of  indifferentism  of 
Spencer,  which  does  not  ask  at  all  what  moral  conse- 
quences may  be  drawn  from  the  fact  that  we  are  con- 
scious beings.'*  The  true  limitative  principle,  I  think, 
is  immanent,  and  is  reduced  to  consciousness  itself,  of 
which  other  consciousnesses  and  objective  reality  are  a 
projection,  and  the  transcendency  of  which  is  only  a 
mirage.     My  theory  is  an  immanetit  monism. 

«  See  in  the  Revue  des  Deux  Mondes,  our  study  of  "Les  Postulats  et 
les  Symboles  de  la  Morale  Naturaliste,"  March,  1883. 


226  ALFRED  FOUILLÉE  [  Ch.  VII 

§  168.  The  Ideal  Has  a  Potential  Reality.  Let  me 
add  in  closing  that  the  harmony  thus  estabHshed  by 
theory  cannot  fail  to  be  estabHshed  also  in  practice  nor 
to  manifest  itself  in  history.  We  may  also  anticipate  a 
closer  and  closer  agreement  among  the  various  nations 
in  their  conception  of  human  and  of  universal  rights. 
The  oppositions  of  to-day  are  fleeting;  they  are  due 
especially  to  the  fact  that  the  European  nations,  at  one 
time  impeded  by  hereditary  privilege,  at  another  time 
reduced  to  servitude  by  some  Caesar  toying  with  fortune, 
have  not  been  permitted  hitherto  to  see  established  in 
their  midst  either  complete  freedom  or  real  equality, 
without  which  there  is  no  lasting  peace  or  genuine 
brotherhood  with  other  nations. 

§  169.  Freedom  the  Basis  of  French  Social  Philosophy. 
Our  social  and  political  philosophy  in  France  must 
frankly  avow  that  from  the  scientific  point  of  view  it 
rests  upon  a  pure  idea,  which,  however,  from  the  point 
of  view  of  metaphysics  and  cosmology,  may  be  a  remote 
symbol  of  reality.  Is  this  avowal  a  mark  of  weakness? 
On  the  contrary  it  is  an  indication  of  power.  The  direc- 
tive ideas  are  motive  forces  of  greater  or  less  strength  and 
certitude,  but  they  are  always  necessary.  They  are  for 
rational  beings  what  instincts  are  for  irrational.  The 
bird  holds  in  its  brain  the  image  of  the  nest  which  ob- 
sesses it  like  a  dream,  at  the  same  time  a  memory  of  the 
past  and  a  divination  of  the  future.  It  labors  under 
the  sway  of  this  interior  vision,  until  it  has  given  to  it 
material  shape  and  has  built  on  the  branch  the  real 
nest  in  which  it  is  to  hatch  its  young.  And  this  instinct 
is  commonly  infallible.  The  visionary  is  a  prophet.  As 
animals  act  from  instincts,  so  men  act  from  ideas;  and 
so  do  nations,  with  whom  ideas  always  assume  an  in- 
stinctive form.     The  ancient  Germans,  engrossed  by  the 


§169]  THE  DIRECTIVE  IDEAS  227 

idea  of  battle,  dreamed  of  a  heaven  where  warriors 
would  come  to  life  healed  of  their  wounds,  fit  to  renew 
the  fight.  Other  peoples  were  intoxicated  with  the  idea 
of  pleasure,  and  dreamed  of  a  paradise  of  houris.  With 
some,  power  has  been  the  object  of  thought  and  instinct, 
either  habitually  or  occasionally;  others  have  been 
devoted  to  the  useful,  and  others  still  have  lived  for  the 
beautiful;  some  live  to  labor,  others  to  contemplate 
and  admire.  Among  all  the  directive  notions  of  nations, 
epochs,  and  individuals,  the  struggle  for  existence  has 
dominated,  and  dominates  still.  There  is  a  natural 
selection  of  ideas  as  of  species;  every  idea  is,  in  my  opin- 
ion, a  specific  form  and  type,  an  ideal  species,  as  Plato 
would  say.  The  idea  of  freedom,  for  example,  symbol- 
izes a  species  of  beings  who  have  within  themselves  the 
principle  of  their  activity  and  of  their  unlimited  develop- 
ment. We  classify  all  men  under  this  idea  of  inde- 
pendence, even  those  most  manifestly  in  a  state  of  moral 
slavery,  just  as  we  classify  under  the  conception  of  the 
ideal  circle  all  the  actual  curves  which  tend  to  be  circular, 
however  widely  they  may  deviate  from  the  controlling 
line.  Man  aspires  to  be  free  as  a  drop  of  water  falling 
from  the  clouds  aspires  to  be  a  sphere,  as  the  rainbow 
in  the  sky  aspires  to  be  a  circle.  The  ideal  right  of  man, 
then,  is  to  be  free,  as  the  ideal  right  of  a  ray  of  light  is  to 
extend  in  a  straight  line.  This  is  at  least  the  idea  which 
certain  men  and  certain  nations  at  various  times  have 
formed  of  the  essential  direction  of  humanity  :  the  French 
people,  for  example,  appear  to-day  to  be  unable  to  conceive 
it  otherwise.  Possibly  some  other  nation  may  succeed  in 
conceiving  some  other  directive  idea;  but  as  individuals 
and  nations  must  act,  and  as  rational  beings  cannot  act 
without  an  idea,  every  individual  and  every  nation  must 
seek  its  strength  in  its  own  moral  and  social  idea,  whether 
lasting  or  transitory,  destined  to  survive  or  doomed  to 
perish  with  the  ages. 


228  ALFRED  FOUILLÉE  [Ch.  VII 

§  170.  The  Evolution  of  Ideas.  Among  the  instincts 
of  animals  there  are  certain  aberrations  due  to  the  per- 
petuation, by  a  kind  of  hereditary  tradition,  of  acts 
which  were  formerly  useful  to  the  species  but  are  now 
useless.  More  than  one  example  may  be  found  among 
the  bees  and  the  ants.  Similarly,  among  the  directive 
ideas  of  individuals  and  of  nations,  there  are  super- 
annuated forms  of  life  and  conduct,  types  of  action  which 
have  outlived  their  usefulness,  such  as  certain  religious 
conceptions  once  good  but  riow  useless  or  even  injurious. 
Such  are  also  certain  moral  conceptions  which  are  now 
nothing  but  prejudices,  certain  social  or  political  ideas 
which  in  our  day  are  mere  antiques,  like  those  of  the 
nobility,  caste,  absolute  royalty,  the  divine  right  of 
kings.  These  are,  so  to  speak,  twilight  ideas,  and  others, 
on  the  contrary,  affect  us  like  the  morning  dawn.  We 
debate  the  question  which  will  retire  into  the  night  and 
which  will  grow  in  brightness,  but  the  coming  of  the 
day  will  end  the  dispute.  History  will  show  which 
were  wrong  and  which  are  right.  At  the  present  moment 
we  should  like  to  know  whether  the  future  belongs  to 
equal  freedom  and  to  human  brotherhood,  or  whether 
every  ideal  of  pure  right  is  to  be  replaced  by  the  play  of 
mechanical  forces,  the  play  of  interests,  or  that  of  bio- 
logical functions.  Among  the  adverse  ideas  which 
struggle  for  life  in  the  bosom  of  humanity,  it  is  for  each 
individual,  for  each  nation,  to  choose  its  part. 

§  17L  Present  Tendencies  Reveal  the  Future.  But 
science  may  forestall  history,  and  may  tell  us,  even  before 
the  sun  has  appeared,  whether  the  lights  on  the  horizon 
are  those  of  the  evening  or  of  the  morning.  The  value 
of  an  idea  is  tested  by  its  theoretical  development  and 
by  its  practical  application,  as  a  motion  is  tested  by  com- 
putations in  pure  and  by  experiments  in  applied  me- 
chanics.    The  same  is  true  of  the  idea  of  right  ;  we  appre- 


§  171  ]  THE  DIRECTIVE  IDEAS  229 

ciate  its  value  best  when  we  have  followed  out  both  its 
speculative  developments  and  its  social  applications. 
We  hope  to  show,  in  the  course  of  these  studies,  that 
society  may  be  constructed  conformably  to  this  directive 
idea  of  right,  which  completes,  without  destroying  them, 
the  ideas  of  power  and  of  interest.  Already  we  have 
deduced  from  it  the  progressive  equality  of  men;  and 
we  believe  that  we  can  also  deduce  from  it  progressive 
fraternity,  the  formula  of  justice,  the  law  of  contracts, 
the  rule  of  modern  legal  systems,  the  particular  character 
of  the  evolution  in  the  social  organism  subject  to  the 
control  of  ideas.^  Furthermore,  history  shows  us  all 
the  consequences  of  this  notion  of  right  which  tends 
toward  realization  under  our  eyes,  and  is  being  realized 
more  and  more  every  day.  Are  we  not  hence  justified 
in  concluding  that  society  will  end  by  really  organizing 
its  forces  and  its  interests  in  accordance  with  the  ideal 
of  right,  and  that  we  have  in  this  idea  a  forecast  of  the 
coming  humanity? 

If  an  astronomer  discovers  in  the  starry  vault  a  nebula 
in  process  of  condensation,  and  if  he  can,  by  the  aid  of 
the  telescope,  study  the  form,  the  direction,  the  rate  of 
movement  of  the  stars  which  compose  it,  these  facts, 
if  they  are  numerous  enough,  will  perhaps  enable  him 
to  determine  in  advance  the  form  which  this  sidereal 
matter  will  one  day  take  on,  and  the  single  center  around 
which,  after  thousands  of  years,  these  suns,  in  motion 
for  ages,  will  eventually  unite.  History  and  the  psycho- 
logy of  peoples  do  an  analogous  work,  in  which  the  past 
and  the  present  disclose  the  future;  they  display  to  us 
in  the  laws  of  motion  and  of  life,  and  consequently  in 
the  laws  of  force  and  of  desire,  a  determinism  which 
must  always  be  taken  into  account;  but  they  show  us 
also,  in   the   aspiration   towards   universal  liberty,  the 

'See,  on  these  points,  our  "Science  Sociale  Contemporaine." 


230  ALFRED  FOUILLÉE  [  Ch.  VII 

principle  and  the  end  of  all  the  activities  and  desires 
of  human  kind.  The  idea  of  liberty,  of  independence, 
and  of  right  is  henceforth  for  us  the  highest  ideal  which 
we  can  conceive;  and,  in  the  end,  from  the  standpoint 
of  progress,  the  advantage  necessarily  rests  with  the 
highest  ideas.  In  the  ancient  symbolism,  the  visible 
universe  was  born  complete  from  that  eternal  aspira- 
tion, or,  if  one  prefers,  from  that  everlasting  word, 
reverberating  through  immensity,  "Let  there  be  light!" 
May  we  not  say  that  the  moral  and  social  universe  was 
born  complete  from  a  perennial  desire  or  hope,  from  an 
indestructible  idea,  from  an  internal  word  which  has 
resounded  to  infinity  in  the  consciousness  of  mankind, 
and  has  expressed  itself  in  the  acts  of  history  —  Let  there 
be  liberty! 

§  172.  Human  Evolution  Works  toward  a  Definite  End. 
We  must  apply  to  these  high  conceptions,  such  as  liberty 
and  right,  the  words  which  Schelling  and  Hegel  use  with 
respect  to  God:  if  they  are  not,  they  are  becoming. 
From  the  scientific  point  of  view  the  evolution  of  nature, 
its  becoming,  may,  properly  speaking,  have  no  pre- 
conceived end;  but  the  evolution  of  humanity  has,  for 
humanity  proposes  an  end  to  itself,  and  sets  up  an 
ideal  for  its  realization.  The  greatest  men  and  peoples 
are  those  who  have  ranked  this  end  the  highest  and 
have  struggled  for  its  attainment. 

§  173.  Historical  Expression  of  the  Dominant  Idea 
of  the  French.  Thus  is  revealed  to  us  the  law  of  develop- 
ment from  whose  dominion  no  country  may  withdraw 
itself  without  degeneration,  without  bringing  its  great- 
ness, its  very  existence,  into  deadly  peril.  A  people 
develops  according  to  the  directive  idea  of  which  its 
national  character  and  philosophy  are  the  expression 
in  the  great  periods  of  its  history;  now  the  principal 
directive  idea  of  French  democracy,  as  we  have  seen, 


§173]  THE  DIRECTIVE  IDEAS  231 

has  been  that  of  liberty  producing  equality  and  fra- 
ternity. May  we  not  draw  from  this  fact  highly  practical 
conclusions  affecting  the  future  of  our  democracy?  We 
will  limit  ourselves  here  to  a  bare  preliminary  indication 
of  them. 

§174.  Democracy  the  PracticalEnd  of  French  Thought. 
On  the  one  hand,  every  nation  needs,  to  enable  it  to 
resist  the  causes  of  dissolution,  a  moral  cohesion,  a 
psychical  unity,  that  which  is  called  the  soul  of  a  people. 
A  people  which  would  have  a  hundred  diverse  souls,  so 
to  speak,  would  carry  division  in  its  bosom,  and  sooner 
or  later  would  break  into  pieces  like  those  lower  organ- 
isms whose  life,  still  diffuse  and  scattered,  tends  towards 
dissolution.  The  laws  of  natural  history  are  valid  for 
nations,  for  although  a  nation  is  a  product  of  voluntary 
consent  it  is  also  a  natural  organism.^  On  the  other 
hand,  any  unity  imposed  on  a  people  from  without,  as 
by  a  despotic  central  power,  can  only  delay  dissolution 
without  preventing  it.  In  the  history  of  living  species, 
nature  works  from  within  ;  and  it  is  the  same  for  human- 
ity. Every  people  must  have  an  inner  unity  which 
radiates  from  the  center  to  the  surface,  determining  its 
own  form,  as  does  life.  Now  this  natural  unity,  for 
democratic  France  of  to-day,  is  the  idea  of  right.  If  we 
would  recover  our  national  powers,  it  is  in  this  idea, 
better  understood  and  scientifically  applied,  that  we 
must  seek  our  point  of  support,  our  common  center  of 
inspiration.  From  our  civil  and  penal  codes  we  must 
eliminate,  gradually  and  methodically,  those  laws,  not 
very  numerous,  in  which  the  influence  of  old  customs, 
ancient  privileges,  and  state  religion,  still  exists,  at  the 
expense  of  rational  right.  As  to  our  political  constitution 
the  sole  complete  and  adequate  realization  of  the  idea 
of  right  is  the  government  of  all  by  all;  other  systems 

•See  our  "Science  Sociale  Contemporaine." 


232  ALFRED  FOUILLÉE  [Ch.VII 

are  in  fact  institutions  of  privilege,  this  alone  embodies 
the  common  right.  A  factitious  monarchy  or  aristo- 
cracy will  always  offend  the  logical  spirit  of  the  French 
people,  which  is  an  enemy  to  all  figments,  constitutional 
or  other,  and  is  little  accustomed  to  bow  to  symbols 
or  idols.  Ideas  of  hereditary  power,  of  irremovability, 
of  royal  or  lordly  prerogative,  of  traditional  right  or 
divine  right,  are  repugnant  to  our  sentiments  of  liberty 
and  of  individual  responsibility,  as  to  those  of  equality 
before  the  law.  Furthermore,  France  is  the  only  country 
in  which  the  active,  laboring  classes  concern  themselves 
with  the  moral  legitimacy  of  a  government,  in  which 
they  demand  institutions  conformable  to  reason  and  to 
right,  and  not  mere  expedients  or  compromises  of  in- 
terests and  forces.  This  concern  is  the  inevitable  result 
of  all  the  national  tendencies  which  we  have  pointed 
out.  To  whatever  extreme  this  love  of  logic  and  this 
devotion  to  pure  right  may  lead,  we  must  take  it  into 
account,  and,  what  is  more,  must  take  advantage  of  it. 
We  have  no  longer  either  monarchical  or  aristocratic 
traditions.  For  a  century  the  true  national  tradition 
has  been  a  trend  toward  democracy,  as  our  genuine 
directive  idea  has  been  that  of  right.  The  tradition  and 
the  idea,  still  separate  in  the  minds  of  most  peoples,  are 
united  in  the  genius  of  the  real  France,  all  of  whose 
tendencies  and  psychical  aptitudes  may  be  summed  up 
by  saying  that  it  is  liberal  in  aspiration,  egalitarian,  and 
democratic.  Thus  upon  the  ruins  of  other  forms  of 
government  a  law  of  irresistible  evolution  has  caused  to 
rise  the  only  form  which  can  be  theoretically  harmonious 
with  the  new  spirit  and  capable  of  serving  as  its  organ. 
Three  times  we  have  seen  our  country  make  trial  of  this 
form,  an  abiding  object  of  the  hopes  and  demands  of  the 
people.  Almost  every  one  in  France  agreed  in  the  be- 
ginning that  this  kind  of  government  would  be  the  most 


§174]  THE  DIRECTIVE  IDEAS  233 

just  in  itself  and  the  most  nearly  perfect,  if  it  were  pos- 
sible; to-day  the  wisest  have  suppressed  the  limitation, 
and  are  saying,  "It  has  become  the  only  one  possible  in 
France." 

§175.  A  Pro  gram  for  France.  May  we  not,  therefore, 
believe  that  the  liberal  and  peaceful  development  of  the 
new  order,  which  sooner  or  later  will  become  that  of  all 
the  people  of  the  earth ,  is  alone  capable,  if  properly  under- 
stood and  well  controlled,  of  reviving  our  country  and 
bringing  it  back  into  its  true  path?  Many  times  the 
French  nation  has  been  seen  to  rise  erect  when  it  had 
seemed  prostrated  for  good  and  all  ;  to  muster  unexpected 
riches  when  its  enemies  hoped  that  it  was  ruined  forever  ; 
to  display  a  more  determined  will  to  live  when  it  appeared 
ready  to  perish,  a  new  and  more  fertile  invention  when 
its  powers  of  thought  seemed  isolated  and  sterile.  This 
is  because,  living  habitually  in  a  region  not  wholly 
national  and  egoistic,  it  does  not  feel  itself  attainted  by 
its  disasters  in  the  better  part  of  its  being,  through  which 
it  strives  to  identify  itself  with  the  soul  of  other  peoples. 
It  knows  that  it  will  not  perish  in  so  far  as  it  lives  in  the 
life  common  to  all.  These  ideas,  not  merely  national 
but  broadly  human,  are  the  only  ones  which  can  sustain 
a  people  through  the  ages.  France  can  attain  strength 
and  salvation  only  from  thoughts  fed  by  the  very  thought 
of  humanity  —  thoughts  ever  true,  ever  young,  immortal 
as  humanity  itself;  thus  our  ancestors,  from  the  trunk 
of  the  ancient  oak,  alternately  covered  and  despoiled  of 
its  covering  by  the  changing  seasons,  gathered  the  ever- 
green mistletoe,  fed  by  an  inexhaustible  sap,  symbol  and 
pledge  at  once  of  eternity.  France,  faithful  to  its  genius, 
has  reacted  to  material  checks  by  the  proclamation  of  a 
new  and  higher  idea  to  which  its  conquerors  will  one  day 
themselves  be  forced  to  turn  for  support  ;  to  the  triumph 
of  a  conquering  monarchy  which  had  robbed  it  of  its 


234  ALFRED  FOUILLÉE  (Ch.VII 

fortresses,  it  has  opposed  the  republican  idea,  which,  as 
acknowledged  by  the  German  philosophers  themselves, 
the  Schopenhauers,  the  Strausses,  the  Hartmanns,  as 
well  as  by  the  English  philosophers,  such  as  John  Stuart 
Mill  and  Spencer,  will  one  day  be  applied  and  realized 
throughout  all  Europe  and  over  all  the  earth.  Let 
France  develop  this  idea  in  a  more  scientific  sense,  with- 
out disregarding,  as  she  is  too  prone  to  do,  the  legitimate 
part  which  force  and  interest  play  in  the  social  organism! 
Let  her  appropriate  to  herself  the  qualities  of  other 
peoples  ;  let  her  set  th em  an  example  of  the  most  elevated , 
the  most  unselfish  views,  those  consequently  the  most 
universal  and  the  most  pacific!  Then,  though  materially 
diminished,  France  will  be  morally  enlarged;  cast  down 
in  the  present,  she  will  make  her  own  future;  in  the  face 
of  governments  of  privilege,  destined  sooner  or  later  to 
fall,  she  will  have  inaugurated  by  her  initiative  the  only 
government  worthy  of  the  name  and  certain  to  spread 
over  all  the  world — a  government  destined  to  subordinate 
power  and  interest,  without  disregarding  their  real  laws, 
to  the  ideal  of  right  and  of  fraternity. 


(B)     THEORY  OF  OBJECTIVE  LAW  ANTERIOR  TO  THE 
STATE  — LÉON  DUGUIT 

Chapter  VIII.    Prevailing    Misconceptions   of   the 

State  and  of  Law 237 

Chapter     IX.    Social  Solidarity 258 

Chapter       X.    The  Rule  of  Law 285 

Chapter  XL  The  State  and  Law,  as  Concrete 
Facts  Rather  than  Abstract  Con- 
ceptions      339 


(B)     THEORY  OF  OBJECTIVE  LAW  AN- 
TERIOR TO  THE  STATE  — LÉON  DUGUIT 


CHAPTER  VIIL 

PREVAILING  MISCONCEPTIONS  OF  THE  STATE 
AND    OF    LAW 

OBJECT  OF   THIS   BOOK  — THE   ALLEGED    PERSONALITY 
OF    THE   STATE:    (1)   SURVEY    OF    MODERN    THEORIES;    (2) 
THESE    DOCTRINES    OF    STATE    PERSONALITY    ARE    FIC- 
TIONS;   (3)   PERSONALITY     NOT     NECESSARY   TO   SUPPORT 
PUBLIC    LAW  — THE    STATE   LIMITED    BY    LAW:      (1)   LAW 
IS    BASED    ON    THE    COINCIDENCE    OF    SOCIAL  AND    IN- 
DIVIDUAL    PURPOSES;      (2)     LAW     EXISTS     WITHOUT,     IS 
ABOVE,    AND    LIMITS     THE     SOVEREIGN;     (3)    LAW     NOT 
BASED   ON   THE   NATURAL   RIGHT   OF   THE    INDIVIDUAL; 
(4)  THE   DECLARATION  OF  RIGHTS  OF  1789  — THE   GENE- 
RAL  NOTION    OF    THE    RULE   OF    LAW:    (1)  LAW    IS    OBLI- 
GATORY BECAUSE  IT  IS  A  FACT;   (2)  THE  RULE  OF  LAW 
NOT  A  RULE  OF  CAUSALITY,   BUT  LIKE  NATURAL  LAWS; 
(3)  THE    JURIDICAL    ACT   AND    THE    LEGAL    SITUATION  — 
DEFINITION  OF  THE  STATE  —  IMPORTANCE  OF  KEEPING 
CLOSE   TO   REALITIES. 

§  176.     Object  of  this  Book.     It  may  seem  bold  to  pub- 
lish a  book  on  the  State  and  Law,  a  problem  which 
"    has  been  studied  from  every  side  for  centuries_by  the 
"greatest  minds  without  being  solved.     Our  excuse  for 

1  [By  L.  Duguit.  From  his  "L'État:  Le  Droit  Objectif  et  la  Loi 
Positive."  Chapters  viii-xi  here=pp.  1-52,  80-137,  and  613-618  of 
that  book.     For  this  author  and  work  see  the  Editorial  Preface. — Ed.] 


238  LÉON   DUGUIT  [Ch.VIII 

this  work  is  that  we  desire  to  accomplish  a  negative 
result  —  to  show  that  the  State  is  not  that  collective 
person  invested  with  sovereign  power  (an  idea  invented 
by  publicists);  that  the  law  is  not  that  construction 
erected  by  the  jurists  on  the  unstable  foundation  either 
of  individual  right  or  of  the  omnipotence  of  the  State; 
that  this  combination  of  fictions  and  abstractions  dis- 
appears at  the  touch  of  the  wand  of  reality.  In  a  word, 
our  object  is  not  to  tell  what  the  State  is,  nor  what  the 
law  is,  but  rather  what  they  are  not,  and  we  shall  be 
satisfied  if  we  can  do  our  modest  part  in  breaking  the 
narrow  and  artificial  molds  into  which  legal  thought 
has  been  run  for  ages. 

§  177.  The  Alleged  Personality  of  the  State.  1:  Sur- 
vey OF  Modern  Theories.  With  a  few  rare  excep- 
tions, all  modern  theories  of  the  State  and  public  law 
rest  on  the  conception  of  the  State  as  a  person,  the 
personification  of  the  community.  With  diverse  varia- 
tions Bluntschli's  definition  appears  everywhere:  "The 
State  is  a  combination  of  men  on  a  given  territory,  as  rulers 
and  subjects,  composing  an  organized  moral  person,  or 
more  briefly:  the  State  is  the  politically  organized  per- 
sonality of  a  nation  residing  on  a  given  territory."  ^ 

Some  see  in  the  State  a  will,  the  collective  will  of  a 
moral  person.  This  is  the  metaphysical  theory  of  the 
State,  which  comes  straight  from  Rousseau  and  which 
is  expressed  in  its  purity  in  the  constitutions  of  the 
French  Revolution.  "Sovereignty  is  one,  indivisible, 
inalienable  and  imprescriptible;  it  belongs  to  the 
nation."  ^ 

For  others,  again,  the  State  is  the  organized  com- 
munity, a  biological  reality  as  alive  as  an  individual; 

^Bluntschli,  "Théorie  Générale  de  l'État,"  Riedmatten  translation, 
p.  18  (2d  éd.  1881). 

s  Constitution  of  1791,  title  iii,  art.  1. 


§177]       PREVAILING   MISCONCEPTIONS         239 

a  vast  organism  of  which  individuals  are  the  compo- 
nents, subject  to  the  same  laws  of  birth,  development 
and  death  as  other  organisms.*  Again,  it  is  thought  of 
as  an  organism  and  a  will,  the  organism  being  the  sup- 
port of  the  will.  "  The  essence  of  the  union  which  is 
the  State,"  says  Gierke,  "  is  that  it  contains  the  sover- 
eign direction  of  the  common  will;  it  is  the  community 
of  political  action;  its  substance  is  the  common  will; 
its  exterior  form,  organized  power;  its  function,  the 
conscious  following  of  a  purpose.  ...  A  true 
State  comes  into  existence  as  soon  as  a  particular 
organism  of  State  life  appears."^  Says  Gerber:  "The 
power  of  the  State  is  the  power  of  willing  of  a  moral 
organism  conceived  of  as  a  person.  It  is  not  an  arti- 
ficial and  mechanical  assemblage  of  several  individual 
willings,  but  is  the  collective  moral  power  of  the  people, 
conscious  of  itself."  ^ 

*  R.  Worms,  "Organisme  et  Société,"  especially  pp.  5  and  17,  1896; 
Novicow,  "Annales  de  l'Institut  International  de  Sociologie,"  1897, 
pp.  192ff.;  Lilienfeld,  "Méthode  Organique  en  Sociologie,"  ibid.  1894, 
pp.  39ff.;  "Pathologie  Social,"  1896.  See  an  interesting  critique  of  the 
organic  doctrine  by  Tarde  in  RP  1896,  vol.  i,  p.  6.37,  and  the  dis- 
cussions at  the  sociological  congress  in  the  Annales  de  V Insiilut  de 
Sociologie,  1898.  Cf.  Van  Krieken,  "Die  Organische  Staatslehre,"  1873; 
Jellinek,  "Das  Recht  des  modernen  Staates,"  vol.  1,  "Allgemeine  Staats- 
lehre," pp.  132fï. 

^Gierke,  "Die  Grundbegriffe  des  Staats,"  in  Zeilschrifl  fiir  die 
gesammle  Staalswissenschafl,  1874,  vol.  xxx,  p.  160. 

«"Grundziige  des  deutschen  Staatsrechts,"  pp.  19,  218,  225,  3d  éd., 
1880.  See  also  Preuss,  "Gemeinde,  Staat,  Reich,  alsGebietkorperschaft," 
especially  pp.  137-173,  199-232,  1889.  Hauriou  writes:  "The  meta- 
physical tissue  of  the  State  is  society,  so  far  as  it  is  based  on  abstract 
ideas,  on  reason,  on  justice,  on  the  ideal."  "La  Science  Sociale  tradition- 
elle,"  p.  355,  1896.  See  also  "Précis  de  Droit  Administratif,  La  Théorie 
de  l'État,"  pp.  Iff.,  3d  éd.,  1897,  and  "Leçons  sur  le  Mouvement  Social," 
2d  appendix,  p.  144.  These  different  works  contain  ingenious  con- 
ceptions which  are  often  mystical,  and,  we  fear,  not  at  all  scientific. 
The  theory  of  tissue  is  not  reproduced  in  the  fourth  edition  of  the  "Pré- 
cis de  Droit  Administratif,"  published  in  1900,  in  which  Hauriou  defines 
the  State  (p.  6):  "A  society  which  has  engendered  in  itself  a  public 
organization  and  which  conforms  thereto  through  sovereignty."  "This 
definition,"  adds  the  author,  "brings  out  three  fundamental  elements 
of  the  State,  a  society,  a  public  organization,  a  sovereign  person  in  which 
is  incarnated  the  political  power." 


240  LÉON   DUGUIT  [Ch.vIII 

Still  others  affirm  the  collective  personality  of  the 
State  without  explaining  whether  its  character  is  meta- 
physical or  organic.  The  State  for  them  is  a  legal 
person,  a  subject  of  law.  The  State  enters  into  legal 
relations  with  other  States,  collectivities  and  individ- 
uals; hence  it  is  a  subject  of  law,  a  person.  "The 
theoretical  foundation,"  writes  Jellinek,  "of  the  legal 
conception  of  the  State  is  the  indubitable  natural  and 
historical  reality  of  a  people  dominated  by  a  power 
established  in  a  definite  territory.  .  .  .  Personality 
is  the  capacity  of  being  owner  of  rights, —  in  a  word, 
legal  capacity.  It  does  not  belong  to  the  world  of 
things-in-themselves;  it  is  not  a  reality,  but  a  re- 
lationship of  one  subject  to  another,  a  relationship  of 
legal  order.  .  .  .  Personality  is  not  the  foundation, 
but  the  result  of  the  legal  community.  .  .  .  The 
conception  of  the  personality  of  the  State  is  confirmed 
by  the  fact  that  it  alone  can  give  a  satisfactory  explana- 
tion, from  a  legal  point  of  view,  of  the  manifestations  of 
public  law.  It  alone  makes  it  possible  to  conceive  of 
international  law  in  legal  terms."  "^     Finally,  our  learned 

'  "System  der  offentlichen  subjectiven  Rechte,"  pp.  20, 26, 27, 32,  1892. 
In  "Allgemeine  Staatslehre,"  Jellinek  writes  (p.  150):  "The  State  may, 
then,  be  conceived  only  as  a  subject  of  law,  and  should  be  connected 
with  the  idea  of  a  corporate  body  ['Korperschaft'].  Certainly  men 
are  the  substratum  of  the  body,  men  who  form  a  collective  unity  whose 
directing  will  is  established  by  the  members  of  the  collectivity.  The 
notion  of  corporate  body,  however,  is  purely  legal,  to  which,  as  to  all 
legal  notions,  nothing  objectively  perceptible  in  the  world  of  fact  cor- 
responds; it  is  a  form  of  legal  synthesis  to  express  the  legal  relations  of 
the  collective  unity,  its  relation  with  legal  order."  It  is  the  same  idea 
which  Michoud  is  trying  to  express  when  he  writes:  "For  the  science 
of  law,  the  notion  of  a  person  is  and  should  remain  purely  juridical. 
The  word  signifies  simply  a  subject  of  law,  capable  of  having  subjective 
rights  belonging  to  himself,  nothing  more,  nothing  less.  .  .  .  We  should 
see  in  the  notion  of  personality  a  general  notion  which  is  common  to 
public  and  private  law.  .  .  .  Every  right  must  be  attached  to  a  subject 
capable  of  possessing  and  exercising  it,  either  himself  or  by  agents. 
If  this  is  true  of  property  and  of  other  private  rights,  it  is  also  true  of  the 
rights  of  sovereignty  which  belong  to  the  State."  The  conclusion  is 
evident.     The  State  is  a  subject  of  law,  it  is  a  person,  it  can  only  be  the 


§177]       PREVAILING   MISCONCEPTIONS  241 

colleague  Esmein  says:  "The  State  is  the  legal  per- 
sonification of  a  nation;  it  is  the  subject  and  the  basis 
of  public  authority.  .  .  .  This  authority,  which 
naturally  recognizes  neither  a  superior  nor  a  competing 
power  in  the  field  it  rules,  is  called  sovereignty.  .  .  . 
The  ideal  and  permanent  subject  or  possessor  of  this 
sovereignty,  which  personifies  the  whole  nation  ' — this 
moral  person,  is  the  State,  which  is  thus  identified  with 
sovereignty,  its  essential  quality."  He  adds,  "  It  is  an 
abstract  idea,  but  one  full  of  consequences  and  the 
product  of  a  long  historical  development."  ^ 

2:  These  Doctrines  of  State  Personality  are 
Fictions.  All  these  doctrines,  whatever  the  authority 
and  ingenuity  of  their  defenders,  are  mere  hypotheses 
and  fictions  —  when  they  do  not  run  in  a  vicious  circle. 
Jellinek  declares  that  the  world  of  the  jurists  is  not  the 
world  of  theories,  but  of  action,  of  practical  life,  "a  world 
of  things  for  us,  not  of  things-in-themselves."  ^  He  is 
right,  but  is  not  the  assertion  of  the  existence  of  a  collec- 
tive personality  behind  the  actions  and  the  practical  life 
of  individuals,  an  affirmation  of  a  thing-in-itself,  the 
creation  of  hypostases,'"  the  personification  of  what 
is  only  the  manifestation  of  a  force?  Only  on  condition 
of  keeping  within  the  world  of  reality  can  a  science 
exist.     And    the   realities   are   men,  —  men   who   have 

collectivity  personified;  in  this  character  only  can  it  have,  and  in  this 
character  it  has,  the  right  to  command.  Michoud,  "La  Notion  de  la 
Personnalité  Morale,"  RDC  1899,  vol.  1,  pp.  8-12ff.  See  also  Bemalzik, 
"Kritische  Studien  iiber  den  Begriff  der  juristischen  Personlichkeit  der 
Behorden  insbesondere,"  Archiv  fur  offenllichen  Recht,  ,vol.  v,  1890, 
esp.  pp.  204ff.;  H.  Rehm,  "Allgemeine  Staatslehre,"  in  Marquardsen's 
"Handbuch  des  ôffentlichen  Rechts,"  part  2,  pp.  149ff.,  esp.  p.  156,  1899. 

8  "Eléments  de  Droit  Constitutionnel,"  p.  1,  2d  éd.,  1899. 

•"System  der  subjectiven  ôffentlichen  Rechte,"  p.  15,  1892.  In  "All- 
gemeine Staatslehre"  Jellinek  declares  (p.  145):  "To  the  notion  of  law, 
as  such,  corresponds  no  reality  outside  of  ourselves."  We  will  never 
admit  that.  It  would  be  a  singular  science  which  had  for  its  object 
notions  which  did  not  correspond  to  any  exterior  reality. 

10  Ibid.  p.  31;   "Allgemeine  Staatslehre,"  p.  150. 


242  LÉON   DUGUIT  [Ch.VIII 

common  needs,  who  have  different  talents,  who  exchange 
services,  who  have  always  lived  in  common  and  have 
always  exchanged  services;  who,  because  of  their 
physical  nature,  can  only  live  in  common  and  by  exchange 
of  services;  men  some  of  whom  are  stronger  than  others, 
of  whom  the  stronger  have  always  used  compulsion 
on  the  weaker;  men  who  act  and  who  act  knowingly. 
These  are  the  facts,  beyond  them  are  nothing  but  fictions. 
Men  in  groups  form,  it  is  said,  a  living  organic  being, 
thinking,  willing,  and  distinct  from  the  individuals  who 
compose  it.  But  no  one  has  seen  it.  Volumes  have 
been  written  in  an  unsuccessful  attempt  to  prove  its 
existence.  Behind  these  individual  wills  and  con- 
sciousnesses, there  is,  it  is  averred,  a  collective  will  and 
consciousness,  distinct  from  those  of  the  individuals. 
It  is  true  that  a  certain  number  of  men  in  the  same 
epoch  have  the  same  wishes  and  thoughts;  but  does 
that  make  a  will  or  a  consciousness  which  is  not  merely 
the  sum  of  individual  wills  or  consciousnesses?  Even 
admitting  the  impossible  hypothesis  that  all  persons  in 
the  same  group  think  and  want  exactly  the  same  thing, 
would  there  result  a  will  or  a  consciousness  apart  from 
those  of  the  individuals? 

But,  it  is  objected,  the  object  of  this  will  differs  from 
the  objects  of  the  individuals,  hence  it  is  a  will  distinct 
from  individual  wills.  Not  at  all.  The  will  of  an 
individual,  though  set  on  a  collective  purpose,  remains 
the  will  of  an  individual.  Who  affirms  this  alleged 
collective  consciousness?  The  individual  himself.  His 
very  affirmation  is  the  act  of  an  individual  consciousness. 
That  the  individual  thinks  of  himself  as  solidary  ^^  with 
other  men;  that  the  first  act  of  human  consciousness 
may  have  been  the  thought  of  social  solidarity, —  this 

"  ["Solidaire"  in  French  implies  much  the  same  relation  as  that  of 
our  partnership,  i.e.  community  in  gains  and  losses.  — Transl.] 


§177]       PREVAILING   MISCONCEPTIONS  243 

is  possible,  even  probable;  but  it  was  an  act  of  individual 
consciousness.  We  can  be  sure  that  an  individual 
thinks  and  acts;  we  can  be  sure  of  nothing  else. 

But  behind  the  thoughts  and  acts  which  appear  to  us 
as  the  thoughts  and  acts  of  individuals,  there  exists, 
it  is  said,  the  essence  of  the  community.  No  one  is  sure 
of  this.  To  affirm  it  is  to  formulate  a  metaphysical 
hypothesis,  —  to  reason  like  the  physicists  or  the 
physiologists  who  see  the  phlogiston  and  the  vital  prin- 
ciple behind  the  phenomena  of  nature  and  of  life,  or 
the  psychologists  who,  beneath  psychic  phenomena, 
affirm  the  existence  of  a  thinking  substance,  of  an  im- 
mortal soul  ■ — •  assuredly  a  consoling  belief,  doubtless 
a  religious  affirmation,  but  not  a  scientific  fact. 

3  :  Personality  Not  Necessary  to  Support  Pub- 
lic Law.  It  may  be  argued  that  if  the  State  has  no 
personality,  the  system  of  public  law  goes  to  pieces,  and 
there  is  no  public  law.  But  this  would  be  a  singular 
course  of  reasoning.  "There  must  be  public  law,  so 
the  State  must  be  the  personification  of  the  community." 
The  partisans  of  this  theory  should  begin  by  proving 
the  necessity  of  public  law,  which  they  have  not  done. 
The  vicious  circle  is  closed.  Can  it  be  shown,  moreover, 
that  public  law  is  possible  only  if  the  State  is  a  person? 
Legal  relations,  affirmed  a  priori,  are  based  on  what  are 
called  subjective  rights,  that  is,  on  powers  belonging 
to  subjects.  In  order,  then,  that  there  be  a  public  law, 
there  must  be  subjective  public  rights;  for  this  there 
must  be  subjects  of  law;  the  State  has  subjective  rights, 
hence  it  is  a  subject  of  law,  a  person.  This  argument 
should  have  been  prefaced  by  proof  that  what  one  calls 
the  State  has  subjective  rights.  The  very  idea  of  sub- 
jective rights  is  a  priori.  For  centuries  it  has  been 
affirmed  that  men,  as  individuals,  have  rights,  and  all 
theories  of  law  have  been  constructed  on  this  hypothet- 


244  LÉON   DUGUIT  [Ch.VIII 

ical  affirmation.  In  the  1700s,  the  doctrine  of  the  law 
of  nature  appeared  to  make  this  conception  definite; 
and  all  contemporary  jurists,  even  those  who  wax  most 
sarcastic  over  the  law  of  nature,  are  inbued  with  it.  They 
see  in  the  law  only  the  relation  of  two  subjects  of  law, 
two  persons.  These  subjects  of  law  must  therefore  be 
created  even  if  in  fact  they  do  not  exist,  and  so  the  per- 
sonality of  the  State  was  conceived.  But  first  of  all 
it  should  have  been  inquired  whether  these  pretended 
subjective  rights  are  real,  ■ —  whether  this  world  of  sub- 
jective rights  is  not  artificial  and  inane,  —  whether  all 
these  arguments  were  not  empty  scholasticism,  a  display 
of  cleverness  without  real  importance.  Furthermore, 
an  admission  of  the  nullity  of  all  these  doctrines  has 
escaped  from  the  pen  of  Jellinek  himself,  one  of  the  most 
authoritative  defenders  of  the  personality  of  the  State. 
Wishing  to  explain  the  difference  between  a  representa- 
tive and  an  organ,  he  writes:  "Behind  the  representative 
is  another  person;  behind  the  organ,  nothing."  ^^  Again, 
"The  State  can  exist  only  by  means  of  its  organs;  if 
we  imagine  the  organs  suppressed,  there  remains  no 
State  as  the  support  of  its  organs,  only  a  legal  nullity."  ^' 
If  there  be  nothing  behind  what  are  termed  the  organs 
of  the  State,  then  the  personality  of  the  State  is  a  pure 
fiction  ;  there  is  really  nothing  but  organs,  —  that  is, 
individuals  who  impose  their  wills  on  other  individuals 
with  the  sanction  of  material  coercion. 

§  178.  The  State  Limited  by  Law.  1:  Law  is  Based 
ON  THE  Coincidence  of  Social  and  Individual 
Purposes.  Human  groups  based  on  community  of 
wants,  on  diversity  of  individual  capacity,  on  reciprocal 
service  ;  within  these  groups,  certain  individuals  stronger 
than  the  rest,  either  because  they  are  better  armed,  or 

12  "System  der  subjectiven  offentlichen  Rechte,"  p.  29,  1892. 
"  "Allgemeine  Staatslehre,"  p.  512,  1900. 


§178]      PREVAILING   MISCONCEPTIONS  245 

because  a  supernatural  power  is  attributed  to  them,  or 
because  of  their  wealth,  or  their  number  and  ability, 
thanks  to  this  greater  force,  to  compel  the  obedience  of  the 
rest, — these  are  the  facts.  We  are  entirely  agreed  that 
the  designation  "State"  be  given  to  a  body  of  men,  dwell- 
ing on  a  determined  territory,  of  which  the  stronger  im- 
pose their  will  on  the  weaker,  or  that  this  power  of  the 
stronger  over  the  weaker  be  termed  political  sovereignty, 
but  to  go  further  is  to  enter  the  region  of  hypothesis.  The 
assertion  that  the  will  of  those  who  command  is  com- 
pulsory on  individuals  only  because  it  is  the  collective 
will,  is  a  fiction  conceived  to  justify  this  power  of  the 
strongest,  an  ingenious  fiction  invented  to  legitimize 
force  by  those  exerting  it,  but  it  is  nothing  more.  "Policy 
of  power,"  ^*  says  Jhering  referring  to  law,  "policy  of 
power"  say  we  of  this  fiction,  called  the  collective  will. 
A  dangerous  policy,  for  it  creates  and  maintains  the 
ancient  conflict  between  the  individual  and  the  State, 
as  the  personification  of  the  community,  between  the 
interests  of  the  individual  and  those  of  the  community,  — 
a  conflict  which  can  only  end,  we  fear,  if  this  policy  be 
continued,  in  the  triumph  of  collective  tyranny  or  of 
individualistic  anarchy.  We  shall  try  to  show  that  there 
is  not,  and  cannot  be,  opposition  between  individual 
and  collective  interests,  between  the  individual  and  the 
State,  that  the  interests  of  all  and  of  each  one  are  strictly 
solidary,  that  collective  purpose  coincides  completely 
and  permanently  with  individual  purpose;  that,  making 
use  of  the  expression  of  Karl  Marx,  "The  free  develop- 
ment of  each  one  is  the  condition  of  free  development 
for  all"  ^^;      that  as  social  order  develops,   each  man 

i«  Jhering,  "Law  as  a  Means  to  an  End"  (volume  v  in  the  present  Series) , 
p.  283.  cf.  p.  185  ("Der  Zweck  im  Recht,"  v.  i  (1877),  pp.  250,  255,  367). 

15  Marx  and  Engels,  "Manifeste  du  Parti  Communiste,"  p.  41, 
French  ed.  According  to  the  Manifesto,  this  will  only  come  to  pass 
after  the  fall  of  the  old  bourgeois  society  with  its  class  antagonisms.     If 


246  LÉON   DUGUIT  [Ch.VIII 

becomes  more  individual,  and  inversely  as  well  increasing 
individuality  aids  social  order  ^^;  in  other  words,  that 
the  individual  and  the  collective  blend  into  one,  for  the 
greater  the  freedom  of  the  individual,  the  stronger  the 
bonds  of  society,  and  conversely.  The  State  is,  then, 
not  at  all  that  collective  person,  representing  collective 
rights  against  individuals;  the  State  is  a  community 
in  which  there  are  men  whose  duty  it  is  to  employ  their 
material  force  in  perfecting  social  organization  by  pro- 
tecting the  individual,  and  in  protecting  the  individual 
by  perfecting  social  organization  ;  at  least  there  are  these 
stronger  men.  In  our  thought,  then,  of  political  power 
as  the  power  of  the  strongest,  a  plain  fact,  there  is  con- 
tained, nevertheless,  a  rule  which  is  just  as  obligatory 
for  these  strong  men  as  it  is  for  the  rest.  This  rule  is 
the  rule  of  law.  Our  work  is  to  show  its  foundation,  its 
character  and  its  range.  We  shall  see  that  it  is  at  once 
social  and  individual,  permanent  as  to  its  principle, 
essentially  changeable  in  its  application.  Based  on 
the  coincidence  of  social  and  individual  purposes,  this 
rule  finds  a  first  expression  in  the  human  consciousness, 
a  completer  expression  in  custom  and  in  legislation, 
and  its  realization  through  material  coercion  by  the 
State,  which  accordingly  is  nothing  but  force  put  at  the 
service  of  law, — not  at  the  service  of  a  claim  of  sub- 
jective right,  but  of  a  social  rule  for  individual  con- 
sciences and  wills. 

2:  Law  Exists  Without,  is  Above,  and  Limits 
THE  Sovereign.  Though  denying  subjective  indi- 
vidual rights  and  those  pretended  natural  rights  based, 

it  be  true  that  in  social  relations  the  free  development  of  the  individual 
be  the  condition  of  the  free  development  of  all,  it  would  appear  to  be 
as  true  before  as  after  the  triumph  of  the  working  class.  But  do  not 
touch  Karl  Marx,  he  is  a  god  whose  temple  is  closed  to  the  profane. 

^*  Jaurès,  "Socialisme  et  Liberté,"  in  the  Revue  de  Paris,  Dec.  1,  1908, 
p.  481. 


§178]        PRËVAlLiNCx   MISCONCEPTIONS         247 

according  to  Henry  Michel,  "on  the  high  dignity  of  the 
human  being,"  ^^  we  do  not  reach  the  deceptive  con- 
clusions of  the  German  realistic  doctrine,  whose  most 
accredited  representative  Seydel  writes:  "This  truth 
is  unquestionable,  there  is  no  law  without  a  sovereign, 
abo\'e  the  sovereign,  or  besides  the  sovereign;  law  exists 
only  through  the  sovereign."  ^^  On  the  contrary,  we 
think  the  law  exists  without  the  sovereign,  and  above 
the  sovereign.  We  equally  repel  the  doctrine  defended 
by  Jellinek  of  the  s  elf -I  imitation  of  the  State,  which  seems 
to  have  seduced  some  of  the  most  distinguished  represen- 
tatives of  the  young  French  School.  Says  Jellinek: 
"Just  as  the  State  possesses  the  faculty  of  self-determina- 
tion, so  it  possesses  that  of  self-limitation.  ...  In 
virtue  of  self-limitation,  the  State  becomes  moral  instead 
of  physical  force,  its  will  rises  from  unlimited  power  to 
a  power  juridically  limited  as  regards  other  persons."  ^^ 
The  explanation  is  ingenious,  but  it  does  not  solve  the 
problem.  This  self-limitation  of  the  State  is  purely 
illusory.  The  limitations  which  the  State  puts  on  itself 
will  be  dictated  by  its  own  purpose,  by  custom,  by  public 
opinion.  These  limitations  are  ethical,  political,  econ- 
omic, they  are  not  juridical.-"  We  deny  all  this,  and  we 
believe  firmly  that  there  is  a  rule  of  law  above  the  in- 
dividual and  the  State,  above  the  rulers  and  the  ruled; 
a  rule  which  is  compulsory  on  one  and  on  the  other; 
and  we  hold  that  if  there  is  such  a  thing  as  sovereignty 
of  the  State,  it  is  juridically  limited  by  this  rule  of  law. 

"  "L'Idée  de  l'État,"  p.  646,  1896. 

18  "Grundzûge  einer  Allgemeinen  Staatslehre,"  p.  14,  1873. 

I»  "Gesetz  und  Verordnung"  p.  198,  1887.  Cf.  "Die  rechtliche  Natur 
der  Staatenvertrage,"  pp.  9ff.,^  1880,  and  "Allgemeine  Staatslehre," 
pp.  331ff .,  1900.  See  Le  Fur,  "État  Federal  et  Confédération  d'États," 
pp.  434fï.,  1896. 

^^  Saripolos,  "La  Démocratie  et  l'Élection  Proportionnelle,"  vol.  i,  p. 
278,  1899.  Jellinek,  "Allgemeine  Staatslehre,  p.  213,  1900;  see  never- 
theless ibid.,  p.  336. 


248  LÉON  DUGUIT  [Ch.VIII 

Law,  if  it  is  anything,  limits  individual  wills,  and  that 
which  is  termed  the  will  of  the  State  is  at  bottom  but 
the  will  of  a  certain  number  of  individuals.  This  limi- 
tation of  the  State  is  both  positive  and  negative.  Some 
things  the  State  is  obliged  to  do,  other  things  it 
cannot  do.  To  determine  the  principle  of  this  double 
limitation  is  the  province  of  legal  science;  to  express 
it  in  words  and  to  provide  it  with  a  practical  sanc- 
tion is  that  of  legal  art.  If  this  is  too  much  for  legal 
science  and  legal  art,  their  study  is  not  worth  a  moment's 
effort. 

3:  Law  Not  Based  on  the  Natural  Right  of 
THE  Individual.  This  principle  of  a  rule  limiting 
the  power  of  the  State  positively  and  negatively,  we  have 
already  said,  cannot  be  found  in  individual  right  ante- 
ceding  the  State.  The  right  of  the  individual  is  a  pure 
hypothesis,  a  metaphysical  affirmation,  it  is  not  a  reality. 
It  implies  a  social  contract  at  the  origin  of  society,  a 
manifest  contradiction.  Those  who  explain  society 
by  contract  forget  that  the  idea  of  contract  could  only 
come  to  the  minds  of  men  living  in  society;  contract 
is  born  of  society,  not  society  of  contract.  If  law  is 
thought  of  as  a  subjective  power  belonging  to  subjects 
of  law,  then,  necessarily,  persons  appear  in  their  rela- 
tions as  subjects  of  law,  and  the  State  must  be  treated 
as  a  subject  of  law,  the  arbitrary  personification  of  the 
community;  there  then  result  those  artificial  and 
decrepit  theories  at  which  sociologists  and  philosophers 
so  justly  rail.  The  reason  why  our  modern  legal  systems, 
especially  our  legislation  affecting  private  rights,  is  in 
daily  conflict  with  new  needs,  why  it  accommodates  it- 
self ill  to  the  tendencies  and  aspirations  of  modern  life, 
is  just  because  it  rests  wholly  on  this  notion  of  sub- 
jective right.  Of  course,  a  whole  young  French  school 
is  trying  to  adapt  the  antiquated  codes  to  new  needs 


§178]       PREVAILING   MISCONCEPTIONS  249 

by  a  looser  interpretation. ^^  The  work  is  praiseworthy, 
but  can  come  to  nothing.  The  whole  building  is  falling 
to  pieces  and  they  are  trying  to  buttress  it  and  to  repair 
the  façade.  Its  final  fall  may  be  put  off,  but  it  is  in- 
evitable. Our  codes  are  based  on  individual  right, 
and  law  is  social,  exclusively  social.  The  modern  man 
feels  or  conceives  of  law  and  rights  as  a  social  product. 
This  antinomy  between  positive  law  systems  and  the 
modern  conscience  is,  in  our  view,  one  of  the  profoundest 
causes  of  the  present  social  unrest. 

4:  The  Declaration  of  Rights  of  1789.  We 
do  not  mean  that  the  doctrine  of  the  natural  rights 
of  individuals  did  not  appear  at  the  proper  time  and  did 
not  render  a  great  service.  It  first  proclaimed  that  the 
power  of  the  State  is  limited  by  law,  and  this  will  remain 
the  eternal  honor  of  the  French  Revolution.  When, 
in  August,  1789,  and  in  September,  1791,  the  deputies 
in  the  States-General  affirmed  that  the  power  of  the 
State  is  not  unlimited,  that  the  legislator  himself  cannot 
do  everything,^^  they  were  greater  than  Napoleon  at 
Wagram  or  at  Austerlitz.  But  with  an  artificial  prin- 
ciple as  point  of  departure  they  could  only  perform  an 
incomplete  work.  They  did  not  perceive  that  these 
limitations  on  the  State  are  not  fixed,  but  on  the  con- 
trary are  infinitely  variable,  changing  with  periods  and 
countries;  for  example,  if  the  State  may,  at  certain 
epochs,  forbid  associations  of  individuals,  at  others  the 
rule  of  law,  on  the  contrary,  obliges  it  to  respect  all 
associations.  It  is  especially  to  be  noted  that,  while 
the  power  of  the  State  may  be  negatively  limited  by 
the  theory  of  individual  rights,  its  positive  obligations 
cannot  be  determined  on  any  such  principle.     Without 

21  See  especially  Planiol,  "Traité  Elémentaire  de  Droit  Civil,"  p.  38 
in  particular,  1900;  Ghiy,  "Méthode  d'Interprétation  et  Sources  en 
Droit  Privé  Positif,"   1900. 

22  Const.  1791,  title  i,  §3. 


250  LÉON  DUGUIT  [Ch.VIII 

doubt  Henry  Michel  does  consider,  on  the  other  hand, 
that  this  doctrine  if  correctly  understood  may  be  the 
basis  of  both  the  negative  and  positive  obligations  of 
the  State, — of  the  obHgation  of  public  aid,  for  example.^' 
This  we  do  not  believe.  If  the  individual  has  rights 
because  he  is  a  man,  he  can  only  have  those  which  he 
gets  by  nature,  or,  adopting  the  expression  of  the 
eighteenth  century,  he  has  the  rights  of  the  natural  man, 
and  no  more.  The  community  cannot  touch  those 
rights,  or  at  most  only  so  far  as  is  necessary  to  protect 
the  rights  of  all.  This  power  it  has,  and  a  man  has  only 
those  rights  which  he  holds  on  account  of  his  personality, 
"his  eminent  dignity."  The  right  to  relief  is  a  social 
right,  that  is,  a  right  which  can  have  none  but  a  social 
origin.  By  the  pure  individualistic  doctrine,  man 
cannot  impose  this  right  on  the  State,  for,  if  he  could, 
he  would  hold  it  from  the  State,  from  the  community, 
which  would  be  a  clear  negation  of  the  individualistic 
doctrine.  The  positive  obligations  of  the  State  cannot 
be  based  on  the  doctrine  of  individual  rights;  but  these 
obligations  exist.  The  State  should  be  not  simply  a 
"police  State"  or  a  "law  State,"  but  also  a  "culture 
State,"  to  use  well-known  expressions  ^^  which  show 
our  thought  clearly.  We  will  add,  however,  that  police, 
law,  culture,  are  one  and  the  same  thing;  they  designate 

s'  Michel  considers  that  the  doctrine  of  individualism,  rightly  under- 
stood, leads  to  the  recognition,  as  duties  of  the  State,  of  positive  obli- 
gations, like  public  aid,  education,  and  of  correlative  rights  of  individuals 
to  be  aided  and  educated  ("L'Idée  de  l'Etat,"  pp.  93,  466).  We  admit 
unhesitatingly  that  these  are  obligations  of  the  State;  but  we  doubt 
if  they  can  be  derived  from  individualism,  without  stretching  that 
doctrine  into  a  negation  of  itself.  If  the  authors  of  the  Declaration  of 
the  Rights  of  Man  of  1793  recognized  the  right  to  aid,  the  right  to  work, 
and  the  right  to  education,  as  articles  22  and  23  of  the  Declaration 
seem  to  prove,  it  is  yet  to  be  proved  that  when  they  did  so  they  were 
thinking  as  individualists. 

5*  See  particularly  C/cr^f,  "Die  Grundbegriffe  des  Staats,"  in  Zeitschrift 
fur  die  gesammte  Staatswissenschaft,  vol.  xxx,  p.  161,  1874;  Gneist,  "Der 
Rechtstaat,"  1872,  and  2d  ed.  1879. 


§178]       PREVAILING   MISCONCEPTIONS  251 

the  mass  of  the  positive  and  negative  obHgations  which 
rest  upon  the  State,  or  more  correctly,  upon  all  the 
individuals  in  a  social  group,  the  strong  and  the  weak, 
the  rulers  and  the  ruled.  The  State  is  material  force, 
whatever  be  its  origin;  this  force  is  and  remains  a  simple 
fact,  but  it  becomes  legitimate  if  those  who  control  it 
use  it  to  accomplish  the  negative  and  positive  obliga- 
tions which  the  legal  rule  imposes  on  them,  —  that  is  to 
say,  use  it  in  the  realization  of  legal  right.  Law  is 
not,  following  Jhering's  expression,  the  policy  of  force, 
it  is  the  limitation  of  force. 

§  179.  The  General  Notion  of  the  Rule  of  Law.  1: 
Law  is  Obligatory  Because  It  is  a  Fact.  We  pro- 
pose in  this  book  to  seek  for  the  foundation  of  this  rule 
of  law.  It  cannot  be  in  the  individual;  it  can,  then, 
only  be  in  society.  But  this  law  is  not  a  power  of  the 
community  any  more  than  it  is  a  power  of  the  individual. 
It  is  an  objective  rule.  It  is  not,  however,  Kant's 
categorical  imperative,  neither  is  it  the  moral  rule  of 
the  Utilitarians  or  hedonists.  It  is  a  rule  of  fact,  a  rule 
which  men  possess  not  by  virtue  of  any  higher  principle 
whatever  • —  good,  interest,  or  happiness  —  but  by 
virtue  and  perforce  of  facts,  because  they  live  in  society 
and  can  only  live  in  society.  In  a  sense  it  is  the  law 
of  social  life.  This  rule  does  not  admonish  the  individual, 
"Do  this  because  it  is  good,  because  it  is  useful,  because 
your  happiness  depends  on  it"  ;  it  says,  "Do  this  because 
this  is."  It  depends  not  on  a  higher  principle,  but  solely 
on  reality.  It  came  into  being  as  soon  as  men  began  to 
live  in  society,  and  it  will  exist  as  long  as  society  con- 
tinues, unchangeable  in  its  basis,  variable  in  its  appli- 
cation. It  is  the  law  of  the  social  man,  because  the  facts 
are  as  they  are.  The  individual  feels  it  or  conceives 
the  rule,  the  sage  formulates  it,  the  positive  legislator 
declares  it  and  guarantees  that  it  be  respected,  and  is 


252  LÉON    DUGUIT  [Ch.VIII 

himself  subject  to  it  because  his  statutes  are  nothing 
unless  they  are  the  expression  of  this  rule  applicable  to 
everybody. 

2  :  The  Rule  of  Law  Not  a  Law  of  Causality, 
BUT  Like  Natural  Laws.  Yet  this  social  rule,  as 
we  conceive  it,  is  not  a  law  in  the  same  sense  as  the  laws 
of  the  physical  or  biological  worlds,  that  is,  a  law  express- 
ing a  simple  relation  of  succession  between  two  phe- 
nomena. Physical  and  biological  laws  are  laws  of  caus- 
ality; the  social  rule  is  a  law  of  purpose.  The  organic 
doctrine,  lately  much  in  vogue,  which  we  freely  admit 
temporarily  seduced  us,  looks  on  social  phenomena  as 
identical  with  biological  facts,  though  more  complex, 
and  as  subject  like  them  to  the  laws  of  life.  There 
has  been  talk  of  social  biology,  even  of  social  statics 
and  dynamics.^^  These  systems  came  at  their  appointed 
time  and  did  their  work  ;  they  showed  the  nullity  of  the 
theory  of  individual  rights,  they  established  the  point 
that  society  is  not  an  artificial  fact,  produced  by  the 
will,  but  on  the  contrary  a  spontaneous,  natural  fact. 
Their  mistake  was  in  trying  to  identify  social  facts  with 
physical  and  biological  phenomena,  whence  their  present 
discredit.  It  is  impossible  to  avoid  the  point  that  the 
essential  factor  in  social  facts  is  man  himself,  a  creature 
who  knows  what  he  is  doing  and  who  can  say  that  he 
knows.  It  will  never  be  proved  that  the  forces  of  nature 
and  of  life  are  conscious  of  themselves.  It  may  be  that 
they  are,  no  one  knows,  no  one  will  ever  know;  it  is 
possible  that  they  are,  as  everything  is  possible,  but  no 
one  can  show  it,  while  an  individual  consciousness  is 

«  These  expressions  are  those  of  Comte,  but  they  have  been  given  a 
breadth  which  they  certainly  did  not  have  in  the  mind  of  their  author. 
Alengry,  "Essai  Historique  et  Critique  sur  la  Sociologie  d'Auguste 
Comte,"  pp.  231,  244iï.,  1900.  Cf.  Hauriou,  "Le  Mouvement  Social." 
1899,  which  tries  to  explain  society  by  the  principles  of  rational  mechanics 
and  the  laws  of  thermo-dynamics.  Cf.  RMM,  March  and  May,  1879 
(criticisms  hy  Bouasse  and  Hauriou's  answer). 


§179]      PREVAILING   MISCONCEPTIONS         253 

patent  in  every  act  of  a  human  being.  Is  this  force  free? 
No  one  knows,  but  it  is  certainly  conscious.  It  is  also 
certain  that  a  man  feels  that  he  is  moved  by  purposes. 
Perhaps  human  actions  are  really  determined  by  causes, 
but  man  acts  as  if  he  was  determined  by  some  purpose. 
Does  he  freely  choose  this  purpose?  Perhaps;  in  any 
case,  he  chooses  it  consciously.  Natural  phenomena 
appear  to  us  as  determined  by  causes,  it  makes  little  dif- 
ference whether  necessary  or  contingent.  Human  action 
seems  to  be  determined  by  purpose,  perhaps  chosen 
freely,  but  certainly  chosen  consciously.'^  This  is  why 
the  social  law  [loi]  is  â  law  of  purpose;  every  purpose 
is  legitimate  which  conforms  to  the  social  law,  and  every 
act  done  to  accomplish  such  purpose  has  social  value, 
that  is,  juridical  value.  The  rule  of  law  [droit]  is, 
then,  the  rule  of  the  legitimacy  of  purposes,  and  this 
differentiates  it  wholly  from  physical  or  biological  laws, 
which  are  laws  of  the  relations  of  cause  and  effect.  The 
rule  of  law  may  then  be  termed  a  rule  of  conduct,  since 
it  applies  to  conscious  wills,  since  it  determines  the  rela- 
tive value  of  the  conscious  acts  of  men.  It  is  not, 
however,  an  ethical  rule  any  more  than  it  is  a  physical 
law,  because  it  does  not  determine  the  value  of  individual 
actions  in  theinselves. 

3:  The  Juridical  Act  and  the  Legal  Situa- 
tion. We  must  discover  the  principle  of  and  the  formula 
for  this  rule.  Everything  comes  from  it.  An  act  has 
not  a  juridical  value  because  it  has  behind  it  a  subject 
of  law;  such  a  person  cannot  always  be  unearthed,  for 
the  very  good  reason  that  he  never  exists.  An  act 
has  juridical  value  because  the  will  which  caused  it  was 

^^  J  her  in  g,  "Law  as  a  Means  to  an  End"  (Modern  Legal  Philosophy 
Series,  vol.  v),  pp.  Iff.,  17-18  ("Der  Zvveck  im  Recht,"  v.  1  (1877),  pp. 
Iff.,  23-25).  For  the  distinction  of  laws  of  purpose  and  of  causality  com- 
pare JeZhwefe,  "Allgemeine  Staatslehre"  (1900),  pp.  17ff.,  123;  Laband, 
Archivfiir  offentliches  Recht,  v.  ii,  p.  317  (1887). 


254  LÉON   DUGUIT  [Ch.viii 

determined  by  an  end  in  conformity  with  the  rule  of  law. 
The  old  idea  of  the  bond  of  law — the  "vinculum  juris"  — 
is  disappearing,  the  legal  relation  is  vanishing.  A 
human  fact,  that  is  to  say,  a  fact  brought  about  by  the 
act  of  an  individual  will,  is  all  that  there  is.  This  fact 
is  a  legal  fact,  if  it  is  in  conformity  with  the  rule  of  law  ; 
and  in  this  case  a  person  controlling  a  material  force  will 
make  a  legitimate  use  of  his  force  in  realizing  this  act 
of  will.  One  says  that  there  then  exists  a  legal  situation. 
This  is  a  supple  and  prolific  conception  marvelously 
adapted,  as  we  hope  to  show,  to  the  needs  of  modern 
societies;  a  protective  conception,  for  though  it  cannot 
justify  the  origin  of  the  State,  it  can  limit  its  power  and 
activity  and  mark  its  obligations;  a  practical  conception, 
for  it  does  away  with  long,  vain  controversies  about 
juridical  personality. 

§  180.  Definition  of  the  State.  Such  are  the  general 
ideas  which  have  inspired  this  book,  in  which  there  will  be 
much  question  of  the  State,  of  objective  and  subjective 
law,  and  of  public  law.  The  "State"  —  we  shall  use 
the  word  to  conform  to  usage,  but  it  goes  without  saying 
that  in  our  thought  this  is  not  the  personified  entity 
which  it  is  usually  taken  to  be.  For  us  the  State  is  man, 
the  group  of  men,  who  in  fact  in  a  society  are  materially 
stronger  than  the  others.  The  State  is  no  more  than 
that,  and  that  is  what  it  has  always  been  and  always  is, 
whatever  be  its  form,  whether  material  power  be  held 
by  one  individual,  by  several,  or  by  a  majority.  The 
idea  of  a  material  power  legitimate  by  reason  of  unan- 
imity is  a  fiction,  for  if  every  one  wanted  the  same  thing 
there  would  be  no  use  in  commanding  it  and  in  forcing 
people  to  do  it.  Such  a  condition  would  be  the  negation 
of  the  State,  That  social  fact  called  the  State  would 
no  longer  exist.  Objective  and  subjective  law,  expres- 
sions which  have  been  used  and  abused,  are  only  half 


H801       PREVAILING   MISCONCEPTIONS         255 

satisfactory.  We  adopt  them,  nevertheless,  because 
they  are  convenient  ;  they  are  well  enough  if  their  mean- 
ing is  understood.  The  German  school,  followed  faith- 
fully, we  regret  to  say,  by  the  young  French  school, 
desires  to  separate  completely  and  absolutely  public  and 
private  law.  We  protest  against  this  conception.  We 
do  not  deny  that  in  practice  there  is  a  place  for  a  distinc- 
tion between  the  law  termed  "private"  and  that  termed 
"public,"  a  distinction  arising  from  the  difference  in 
practical  sanction.  If,  however,  law  exists,  it  is  always 
the  same,  because  it  rests  on  the  rule  of  law,  which  has 
always  the  same  basis.  There  is  only  one  law,  as  there 
is  only  one  justice,  and  we  fear  that  for  many  of  the 
German  schools  this  rigorous  distinction  between  public 
and  private  law  is  merely  an  ingenious  way  of  giving 
a  juridical  appearance  to  the  absolute  power  of  the 
State. 

§  181.  Importance  of  Keeping  Close  to  Realities.  It 
may  be  found  that,  in  these  studies,  which,  we  think, 
should  keep  as  close  to  reality  as  possible,  we  have  used 
the  deductive  method  too  largely,  and  that  we  have  not 
entirely  succeeded  in  getting  away  from  that  scholasti- 
cism with  which  jurists  have  been  imbued  for  centuries, 
and  which  has  been  the  ground  of  so  much  just  reproach. 
The  deductive  method  seems  to  us  nevertheless  legiti- 
mate, if  it  is  used  only  as  an  instrument  of  discovery. 
We  have  intended  to  use  it  in  this  way,  and  to  see  nothing 
more  than  hypotheses  in  the  conclusions  to  which  it 
leads  us,  in  so  far  as  they  are  not  confirmed  by  facts. 
The  world  of  law  is  not  that  shut-in  world  shown  us  by 
certain  jurists,  an  ideal  world  apart  from  reality;  it  is 
a  world  of  tangible  facts  which  must  be  explained  and 
classified,  of  human  wills  which  must  be  understood  in 
their  concrete  manifestations;  it  is  the  social  effect 
which  they  produce,  the  material  force  which  they  set 


256  LÉON   DUGUIT  [Ch.VIII 

in  motion  and  which  must  be  determined  and  estimated. 
Our  efforts  have  all  been  towards  this  end.^^ 

Nevertheless,  might  not  the  objection  be  made  that 
we  have  neglected  facts,  since  in  this  whole  book  there 
is  no  consideration  of  the  various  forms  of  the  State  in 
various  epochs  and  different  countries,  and  that  our 
study  is  consequently  purely  abstract?  Such  a  criticism 
would  not  seem  to  us  well  founded.  The  method  of 
observation  does  not  pre\'ent  us  from  classifying  the 
facts,  from  distinguishing  them  without  isolating  them 
from  others  with  which  they  are  mingled.  The  imper- 
fection of  the  human  mind  obliges  us  to  do  this.  Now 
the  only  fact  which  we  are  studying  is  the  fact  of  a  con- 
scious material  force  which  certain  individuals  claim 
the  right  of  using  to  control  others,  and  by  means 
of  which  they  do  actually  control  them;  this  fact,  in 
itself,  remains  always  the  same,  whatever  be  the  method 
of  government  of  the  powerful.  The  character  of  this 
material,  conscious  force  depends  not  on  the  position 
or  number  of  those  who  control  it,  but  wholly  on  the 
materiality  of  the  force  and  on  the  purpose  which  has 
set  it  to  work.  Or  in  other  words,  the  State,  whatever 
may  be  its  exterior  form,  monarchy,  aristocracy,  or 
democracy,  always  has  the  same  powers  and  the  same 
duties,  no  more,  no  less.^^     This  fact,  the  State,  so  under- 

!'  On  the  question  of  method  in  public  law,  see  Deslandres,  "La  Crise 
de  la  Science  Politique,"  in  RDP  1900,  v.  i,  particularly  pp.  249  and 
435.  The  author  criticises  very  justly  the  so-called  juridical  method, 
and  very  severely  what  he  terms  the  sociological  method.  But  in  this 
last  point  the  criticism  seems  to  us  to  apply  to  the  insufïiciency  of  the 
results  obtained  by  sociology,  to  the  unproved  hypotheses  which  that 
science  makes  the  mistake  of  piling  up,  rather  than  to  its  method,  which 
is  and  can  only  be  observation. 

^^Sir  Henry  Maine  says  very  justly:  "The  advanced  radical  poli- 
tician of  our  day  would  seem  to  have  an  impression  that  democracy 
differs  from  monarchy  in  essence.  There  can  be  no  grosser  mistake  than 
this  and  none  more  fertile  of  further  delusions.  Democracy,  the  govern- 
ment of  the  commonwealth  by  a  numerous  but  indeterminate  portion 
of  the  community  taking  the  place  of  the  monarch,  has  exactly  the  same 


§181]       PREVAILING   MISCONCEPTIONS  257 

stood,  is  a  fact  always  identically  the  same  as  before, 
and  it  is  this  fact,  and  this  alone,  which  we  want  to 
study.  So  reduced,  the  field  is  singularly  vast,  the  prob- 
lems are  many  and  difficult;  but  there  are  none  whose 
solution  interests  more  directly  contemporary  society. 

conditions  to  satisfy  as  monarchy;  it  has  the  same  functions  to  discharge, 
though  it  discharges  them  through  different  organs.  The  tests  of  suc- 
cess in  the  performance  of  the  necessary  and  natural  duties  of  a  govern- 
ment are  precisely  the  same  in  both  cases."  "Popular  Government," 
Essay  II  ("The  Nature  of  Democracy"). 


258  LÉON  DUGUIT  [Ch.  IX 

CHAPTER  IX' 
SOCIAL  SOLIDARITY 

DEFINITION  OF  SOLIDARITY  — THE  INDIVIDUAL:  (1) 
THE  INDIVIDUAL  MIND  THE  BASE  OF  ALL  HUMAN  PHE- 
NOMENA; (2)  THOUGH  ITS  CONTENT  MAY  VARY,  THE 
MIND  REMAINS  THE  SAME;  (3)  WILL  AND  ACTION;  (4) 
INDIVIDUALS  THE  ONLY  REALITIES  IN  SOCIAL  LIFE  — 
SOLIDARITY  BY  SIMILITUDE:  (1)  LIFE  IN  COMMUNITY 
LENGTHENS  ITSELF  AND  LESSENS  SUFFERING;  (2)  HIS- 
TORICALLY MEN  HAVE  ALWAYS  LIVED  IN  COMMUNITIES; 
(3)  SOCIOLOGY  MUST  SHOW  HOW  THIS  FACT  AFFECTS 
MEN;  (4)  THE  WILL  TO  LIVE  THE  FIRST  BOND  OF  SO- 
CIETY; (5)  THIS  BOND  PECULIARLY  UNITES  MAN  TO  A 
CERTAIN  GROUP;  (6)  BUT  INDIVIDUALITY  IS  NOT  AF- 
FECTED; (7)  THIS  IS  NOT  SOCIAL  CONTRACT;  (8)  ORIGIN 
OF  SOLIDARITY  BY  SIMILITUDE  —  SOLIDARITY  THROUGH 
DIVISION  OF  LABOR:  (1)  MEN  HAVE  ALWAYS  BEEN  UN- 
EQUAL; (2)  INEQUALITY  INCREASES  WITH  INCREASING 
CIVILIZATION;  (3)  BUT  THE  IDEA  OF  EQUALITY  IS  A 
PRODUCT  OF  CIVILIZATION;  (4)  THIS  FORM  OF  SOLI- 
DARITY STRONGER  THAN  SOLIDARITY  BY  SIMILITUDE; 
(5)  THIS  SOLIDARITY  DUE  TO  THE  DESIRE  TO  LESSEN 
SUFFERING;  (6)  OTHER  INFLUENCES  ON  DIVISION  OF 
LABOR. 

§182.  Definition  of  Solidarity.  The  word  "solidarity" 
is  to-day  singularly  abused.     There  is  not  a  book,  a  news- 

1  This  chapter  is  largely  inspired  by  Durkheim's  excellent  book,  "De 
la  Division  du  Travail  Social"  (1893),  although  we  do  not  accept  many 
of  his  ideas. 

[This  chapter=pp.  23-52  (§§  1-3)  of  the  original  work.— Ed.] 


§182]  SOCIAL  SOLIDARITY  259 

paper,  a  meeting,  an  address  or  a  formal  speech,  in 
which  it  is  not  frequently  repeated.  In  a  word,  it  is  the 
fashion,  and  it  often  serves  to  hide  a  lack  of  ideas.  It 
expresses,  however,  an  idea  at  once  real  and  full  of  sug- 
gestion, but  needing  definition.  Solidarity  has  been 
identified  with  Christian  charity,  and  with  the  fraternity 
of  the  motto  of  the  French  Republic.  This  is  entirely 
incorrect.  Solidarity  is  both  more  and  less  than  charity 
and  fraternity.  These  are  moral  duties;  solidarity  is 
a  fact.  A  clear  understanding  of  this  fact  may  be  an 
incitement  to  action,  may  even  serve  as  foundation  for 
a  rule  of  conduct,  but  solidarity  is  not  in  itself  a  rule  of 
conduct.  Christianity  tells  man  to  love  his  neighbors; 
the  motto  of  the  Republic,  to  treat  like  brothers  other 
men,  his  equals,  free  like  himself.  The  doctrine  of 
solidarity  does  not  admonish  ;  it  shows  that  in  fact  men 
are  solidary  with  one  another,  that  is,  that  they  have 
common  needs  which  they  can  only  satisfy  in  common, 
that  they  have  different  capabilities  and  differing  needs 
which  they  can  satisfy  only  by  an  exchange  of  services. 
Consequently,  if  man  wishes  to  live,  he  must  act  in 
conformity  with  the  social  law  of  solidarity.  Solidarity 
is  not  a  rule  of  conduct,  it  is  a  fact,  the  fundamental 
fact  of  all  human  society.  It  is  not  an  imperative,  but 
if  man  wishes  to  live,  since  he  can  only  live  in  society, 
he  should  conform  his  conduct  to  the  fact  of  social 
solidarity. 

Solidarity  is  thus  indirectly  the  foundation  of  a  rule 
of  conduct:  it  takes  the  whole  man,  his  passions,  his 
desires,  his  egoism  and  his  altruistic  tendencies,  if  they 
exist,  it  urges  him  to  develop  his  own  activity  as  widely 
as  he  can;  but  at  the  same  time  it  urges  him  to  respect 
the  activity  of  other  individuals,  since  every  limitation 
of  the  activity  of  one  reacts  on  all.  It  induces  him  to 
seek  happiness  or  the  least  suffering  for  himself  and  for 


260  LÉON  DUGUIT  [Ch.IX 

others,  because  the  suffering  of  one  affects  all.  It  is 
not  the  ethics  of  happiness,  it  is  not  the  reconciliation 
of  egoism  and  altruism,  it  is  a  simple  statement  of  fact, 
the  coincidence  of  purpose  and  effect:  the  unhappiness 
of  one  affects  all,  the  happiness  of  one  profits  all.  The 
knowledge  of  this  fact  is  no  new  discovery,  but  our  epoch 
will,  in  history,  have  the  credit  of  first  distinctly  under- 
standing it.  It  is  important  to  analyze  the  fact  into  its 
essential  elements. 

§183.  The  Individual.  1:  The  Individual  Mind 
THE  Base  of  all  Human  Phenomena.  In  a  little 
book  which  made  some  stir,  as  much  by  the  personality 
of  its  author  as  by  the  ideas  expressed  in  it,  Léon  Bour- 
geois writes: 

"No  more  than  the  State,  the  political  form  of  human  com- 
munity, is  Society,  the  community  itself,  an  isolated  being,  having 
an  existence  beyond  the  individuals  who  compose  it,  and  capable 
of  possessing  particular  rights  higher  than  and  opposable  to  the 
rights  of  those  individuals.  Not  between  men  and  the  State  or 
Society  does  the  problem  of  rights  and  duties  arise,  but  between 
men  alone,  between  men,  however,  conceived  as  associated  in  a 
common  work,  and  under  the  obligations,  one  to  another,  which 
arise  from  the  necessities  of  a  common  purpose." ^ 

On  the  whole,  this  is  very  simple,  almost  common- 
place; but  it  is  not  unimportant  that  in  our  epoch  of 
false  sociology  and  of  ill  understood  socialism  it  has 
been  plainly  affirmed  by  a  man  of  authority  and  talent, 
deep  in  the  strife  of  parties,  who  understands  and  sym- 
pathizes with  modern  tendencies.  Yes,  the  one  thing 
which  can  be  affirmed  and  which  should  be  the  basis 
of  all  social  study  is  the  self-conscious  individual  mind. 
The  irreducible  fact,  which  is  at  the  beginning  of  all 
the  phenomena  of  which  man  is  a  factor,  is  the  indi- 
vidual self-conscious  mind.     The  well-known  aphorism 

^Bourgeois,  "Solidarité,"  p.  89  (1896). 


§183]  SOCIAL  SOLIDARITY  261 

of  Descartes,  "I  think,  therefore  I  am,"  has  been  fre- 
quently criticised  in  modern  philosophy.  The  criticism 
falls,  for  Descartes  merely  stated  a  fact,  the  only  fact 
which  is  incontestable  and  undeniable,  the  self-con- 
sciousness of  the  individual  of  which  every  philosophical 
system  evolved  by  the  individual  mind  is  a  new  con- 
firmation. To  criticise,  to  philosophize,  is  to  declare 
oneself  a  thinking  being.  The  learned  and  disdainful 
theories  of  our  modern  philosophers  have  made  no 
changes.  The  individual  mind  exists,  and  is  conscious 
of  itself.  Cartesianism  is  reproached  as  the  father  of 
the  individualism  of  the  Revolution,  itself  the  parent  of 
all  the  ills  which  afflict  our  modern  society.  A  truly 
singular  reproach!  This  is  not  the  place  to  inquire 
whether  there  is  a  bond  of  union  between  the  Declaration 
of  the  Rights  of  Man  and  the  "Discourse  on  Method." 
Even  if  these  two  manifestations  of  human  intelligence 
were  affiliated,  if  revolutionary  individualism  has  had 
evil  consequences,  the  fact  is  not  changed.  "I  think, 
therefore  I  am,"  is  not  the  affirmation  of  a  principle  of 
the  doctrine  of  individualism,  it  is  the  statement  of  an 
unquestionable  reality,  the  sole  unquestionable  reality. 
The  "thing-in-itself"  of  German  philosophy  is  individual 
thought.  We  should  be  tempted  to  say:  The  "thing- 
in-itself"  is  individual  suffering,  but  at  bottom  the  idea 
is  exactly  the  same. 

2:  Though  its  Content  may  vary,  the  Mind 
Remains  the  Same  at  Bottom.  The  variations  of 
the  individual  mind  are  infinite.  There  is  surely  an 
abyss  between  the  mental  state  of  an  African  savage  and 
of  a  Newton,  a  Renan  or  a  Pasteur,  but  it  is  always  the 
individual  mind,  always  identically  the  same.  This  mind 
may  be  subjected  to  external  influence,  its  content  may 
come  wholly  from  without,  human  consciousness  may 
be  the  "tabula  rasa"  of  Condillac.     These  are  all  ques- 


262  LÉON  DUGUIT  [Ch.IX 

tions  which  the  philosophers  have  been  learnedly  dis- 
cussing for  centuries.  Whatever  be  their  solution,  the 
individual  mind  exists.  The  content  of  this  mind  may 
be  exclusively  social.  Man  has  perhaps  thought  socially, 
as  we  ourselves  have  written,  before  he  thought  indivi- 
dually; it  may  be  that  he  only  thinks  because  he  is  a 
social  being;  the  only  objective  reality  is  perhaps 
society.  What  difference  does  it  make?  Even  admit- 
ting that  the  content  of  consciousness  is  exclusively  social, 
consciousness  itself  is  exclusively  individual.  The  in- 
dividual self-conscious  mind,  that  is  the  fact  set  above 
and  beyond  all  philosophical  or  sociological  systems. 
We  shall  be  accused  of  preaching  a  simplified  philosophy, 
suitable  to  polite  society.  The  reproach  does  not  dis- 
turb us.  The  simplest  philosophy  is  still  the  best,  and 
besides,  here  it  is  not  a  question  of  philosophy,  but  of  the 
simple  statement  of  a  fact. 

3:  Will  and  Action.  The  most  elementary  obser- 
vation makes  another  fact  certain.  This  individual  mind 
tends  to  exterior  expression,  to  action  upon  the  exterior 
world.  This  tendency  to  exteriorization  is,  if  we  do  not 
deceive  ourselves,  an  unquestioned  and  unquestion- 
able law  of  experimental  psychology,  which  shows 
besides  that  this  tendency  increases  the  greater  the  pre- 
cision of  the  mind,  the  clearer  the  consciousness.  This 
conscious  tendency  of  the  mind  to  act  from  within  to 
without  is  the  will  ;  the  external  manifestation  of  the  will 
is  action.  Whether  there  are  in  the  state  of  conscious- 
ness and  the  act  of  volition  two  distinct  psychic  phe- 
nomena, or  whether  analysis  discovers  but  two  successive 
or  concomitant  phases  of  the  same  psychic  phenomenon, 
is  a  problem  for  the  psychologists,  not  for  us.  Whether 
this  will  is  free  or  predestined  is  a  point  which  has  been 
long  discussed  without  having  been  proven  either  way.^ 

"Fonsegrive.  "Essai  sur  le  Libre  Arbitre,  sa  Théorie  et  son  Histoire," 
2d  éd.  1896. 


§183]  SOCIAL  SOLIDARITY  263 

It  is  certain,  though,  that  an  act  of  will  is  always  pro- 
voked by  a  certain  factor  which  the  individual  sees 
in  the  future  and  which  is  an  object.  Is  it  an  objective 
reality  or  only  an  illusion  of  the  mind?  Does  man 
choose  freely  among  difïerent  objects  or  is  he  predestined 
to  choose  that  one  which  forces  itself  upon  him  as  the 
strongest?  These  are  all  insoluble  questions,  whose 
discussion  is  a  play  for  the  intelligence,  passionately 
interesting,  perhaps,  but  without  result.  It  all  comes 
to  this,  that  man  is  conscious  of  his  acts,  and  of  the 
object  which  he  believes  decides  him  to  act, — an  object 
which  he  usually  believes  that  he  has  freely  chosen. 
This  object,  we  repeat,  is  not  in  our  thought  an  objective 
reality,  and  we  cannot  be  reproached  of  falling  back  into 
teleological  doctrines,  which  are  metaphysical,  and 
indifferent  for  any  realistic  and  truly  scientific  study. 
For  us,  the  object  is  the  result  which  the  individual  has 
in  mind  in  acting,  and  which  he  believes  impelled  him 
to  act.  This  is  not  the  final  cause  of  Aristotle  or  of 
St.  Thomas,  but  a  much  more  commonplace  finality. 
It  is  a  momentary  finality,  intrinsic,  if  we  may  say  so, 
to  the  individual.  It  is  not  natural  and  general  finality, 
but  one  purely  contingent  and  individual.  It  is  an  im- 
mediate result  consciously  desired,  perhaps  freely  chosen, 
infinitely  varying  and  changing,  apparently  highly 
complex,  really  exceedingly  simple.  It  is  object  as 
Jhering  understands  il,^  and  to  borrow  his  language, 
it  is  the  "ut"  which  determines  every  act  of  the  human 
will: 

"The  insane  person  also  acts  (so  far  as  his  doings  may  lay  claim  to 
this  name)  not  without  purpose.  His  actions  are  distinguished 
from  those  of  the  rational  person,  not  by  the  want  of  purpose,  but 
by  the  peculiarity  and  abnormity  of  the  purpose.  .  .  .  Even  hab- 
itual action,  in  which  we  no  longer  do  conscious  thinking  at  all,  is 

*  Jhering,  "Law  as  a  Means  to  an  End"  (vol.  v  in  this  Series),  p.  18. 


264  LEON  DUGUIT  [  Ch.  IX 

still  purposeful  action.  .  .  .  But  the  frequent  repetition  of  the  same 
action,  from  the  same  motives  and  with  the  same  purpose,  has  bound 
together  purpose  and  action  to  such  a  degree  that  the  purpose  has 
ceased  to  be  a  consciously  perceptible  element  of  the  voluntary 
process."  * 

4:  Individuals  the  Only  Realities  in  Social 
Life.  Self-conscious  human  beings,  who  think,  who 
will,  who  act  with  a  known  object  in  view,  these  are  the 
only  realities  of  social  life.  All  philosophy,  all  law, 
all  ethics,  all  politics  —  in  a  word  all  sociology  — 
must  begin  with  them.  Any  system  which  neglects 
or  denies  either  in  its  beginning  or  in  its  result,  the 
individual  ego,  is  condemned  in  advance;  for  it  neglects 
or  denies  the  only  undeniable  fact,  the  only  fact  which 
cannot  be  denied,  for  even  to  deny  it  is  to  affirm  it,  since 
negation  is  a  self-conscious  thought  whose  formulation 
is  an  act  of  will  determined  by  a  conscious  end. 

5:  Individual  Consciousness  Grows  More 
Social,  but  in  Essence  Remains  Individual.  It  is, 
however,  evident  that,  while  the  individual  consciousness 
is  the  one  reality,  it  grows  with  the  growth  of  its  content. 
Man  becomes  more  a  man  as  he  thinks  more  clearly 
on  more  subjects,  or  his  range  of  desired  objects  widens. 
There  is  a  larger  assertion  of  individuality  as  the  range 
of  consciousness  clears  and  extends.  Development  of 
the  content  of  consciousness  does  not  change  its  charac- 
ter, however;  it  expands  into  a  more  comprehensive 
reality,  it  remains  individual  consciousness.  The  will 
develops  more  complex  and  stronger  desires,  it  remains 
the  individual  will.  Action  becomes  more  frequent  and 
is  oftener  repeated,  it  accomplishes  more  in  a  shorter 
time,  but  it  remains  individual  action.  Though  a  man 
be  conscious  not  only  of  himself,  but  also  of  the  ties 
which  unite  him  with  other  men,  though  he  think  of 

»  Id.,  pp.  14-15. 


§183]  SOCIAL  SOLIDARITY  265 

himself  not  merely  as  autonomous,  but  as  solidary  with 
others,  his  state  of  consciousness  is  still  individual. 
Though  his  will  and  his  action  be  determined  not  alone 
by  his  own  personal  interest,  but  by  an  interest  common 
to  many  others,  they  remain  individual.  The  more 
he  thinks  the  more  he  wants,  the  more  he  acts  the  fuller 
his  manhood.  Consequently  the  better  he  under- 
stands human  solidarity,  the  more  he  wants,  the  more 
he  acts  towards,  its  realization,  the  wider  grows  the  field 
of  his  consciousness,  the  greater  grows  his  individuality. 
He  does  not  turn  into  Nietzsche's  superman,  he  remains 
simply  man;  he  becomes  more  man  because  he  becomes 
a  higher  individuality.  The  opposition  of  socialism 
and  individualism,  in  the  current  meaning  of  these  words, 
has  no  basis  in  reason.  When  a  man  becomes  more 
social  he  becomes  more  individual,  since  he  thinks  and 
wants  more  things,  and  if  he  becomes  more  individual 
he  becomes  more  social.^  This  leads  us  to  define  the 
idea  of  human  society. 

§  184.  Solidarity  by  Similitude.  1:  Life  in  Com- 
munity Lengthens  Itself  and  Lessens  Suffering. 
The  human  ego  has  for  its  support  an  organized  living 
being.  What  is  life,  what  is  organic  matter,  what  is  an 
organism?- — so  many  questions  which  are  insoluble  or 
at  least  have  only  the  negative  answer:  a  living  organ- 
ized being  is  a  being  which  dies.  Does  this  mean  that 
we  know  what  death  is  better  than  we  know  what  life  is? 
Assuredly  not,  but  the  effect  is  simpler,  consequently 
easier  to  grasp.  One  is  in  the  habit  of  applying  the 
word  "death"  to  a  certain  phenomenon  recognized  by 
a  few  easily  known  characteristics.  To  say  that  a  man 
is  a  living  and  organized  being  is  to  say  that  he  is  a 

"Gide,  "L'École  Nouvelle"  (1890),  address  at  Lausanne;  see  however 
Durkheim,  "Représentations  Individuelles  et  Représentations  Collec- 
tives," in  RMM  May  1898,  p.  273,  and  the  discussion  of  the  article 
by  Roblot  in  RP  December  1898,  p.  430. 


266  LÉON  DUGUIT  [Ch.  IX 

mortal  being.  It  is,  however,  an  observed  fact  that 
man  dies  earHer  if  he  Hves  isolated  from  other  men. 
Besides,  man  suffers.  Suffering  is  not  a  vain  word, 
as  the  Stoics  would  have  us  believe;  it  is  a  reality,  the 
most  unquestionable  reality.  It  is  a  teaching  of  obser- 
vation that  the  sum  of  human  suffering  is  less  when 
man  lives  in  relations  with  other  men.  We  are  well 
aware  that  philosophers  prove  very  learnedly  that 
happiness  and  suffering  are  subjective  and  relative,  but 
only  by  closet  reasonings^  In  fact,  man  suffers,  knows 
that  he  suffers,  wants  to  suffer  less,  and  in  fact  does 
suffer  less  if  he  li\'es  in  a  community  with  other  men. 

2:  Historically  Men  Have  Always  Lived  in 
Communities.  From  another  point  of  view,  these 
human  groups  exist  and  have  always  existed.  Observed 
facts  do  not  justify  the  assertion  that  at  any  historic  or 
prehistoric  period  men  lived  alone.  The  natural  man 
of  La  Boétie,  Locke,  and  Rousseau  never  existed.  We 
do  not  say  that  he  never  could  have  existed,  for  what 
is  possible,  what  impossible?  Just  as  Renan  denied 
miracles  with  the  argument  that  a  true  miracle  had  never 
been  scientifically  proved,^  so  we  deny  the  existence 
of  the  natural  man  in  the  sense  of  the  philosophy  of  the 
1700s,  because  it  has  never  been  scientifically  proved. 
Human  communities  are  facts  of  the  same  type  as  herds 
or  flocks  of  animals,^  primary,  irreducible  and  spon- 
taneous. It  matters  little  whether  the  fact  be  physical, 
biological  or  superorganic, —  these  classifications  are 
arbitrary,  the  fact  is  constant.  Human  beings  do  not 
live  alone,   they  live  in  company  with   others.     Their 

'  See  notably  the  keen  analysis  of  the  idea  of  happiness  in  Durkheim's 
"Division  du  Travail  Social,"  pp.  255ff.  (1895). 

8  "Vie  de  Jésus,"  preface,  p.  vi,  17th  ed.  1881;  cf.  Renan,  "Examen 
de  Conscience  Philosophique,"  in  "Feuilles  Détachées,"  p.  401  (1892). 

^Espinas,  "Sociétés  Animales,"  particularly  Introduction,  p.  8,  and 
Conclusion,  p.  539.  2d  éd.,  1878. 


§184]  SOCIAL  SOLIDARITY  267 

relations  are  characterized  by  a  permanence  which  im- 
presses the  obserxer,  and  they  appear  in  an  infinite 
number  of  forms  varying  with  the  period  and  the  coun- 
try, but  the  characteristic  of  the  fact  is  always  apparent, 
and  the  observer  can  always  grasp  it,  isolate  it,  and  ex- 
press it,  disentangling  it  from  the  facts  which  precede, 
accompany,  or  follow  it. 

3:  Sociology  Must  Show  how  this  Fact  Af- 
fects Men.  The  sociologist  cannot  limit  himself  to 
this  statement.  This  fact  of  human  communities  con- 
tains the  factor  of  the  man  himself,  conscious,  individual, 
and  willing.  So  what  social  science  should  determine  is 
less  the  fact  of  conmumity  itself,  than  the  form  in  which 
it  is  reflected  in  human  consciousness,  and  its  action 
on  the  human  will.  It  is  essential  that  this  be  well 
understood.  We  have  already  said  that  it  is  wholly 
incorrect  to  apply  the  concepts  and  methods  of  physical 
and  natural  science  to  the  study  of  social  facts,  that 
these  are  studies  of  an  entirely  different  order,  because 
we  cannot  say  that  there  is  consciousness  behind  the 
phenomena  of  nature,  while,  on  the  contrary,  we  can 
say  that  the  principal  element  in  social  facts  is  a  con- 
scious being  —  man.  We  touch  here  the  accuracy  of 
observation.  It  seems  quite  evident  that  if  the  sociolo- 
gist considers  the  human  community  as  the  physiologist 
or  the  ph^^sicist  observes  a  natural  phenomenon,  he 
will  see  only  a  part  of  it- — his  observation  will  be  in- 
complete. What  should  interest  him  above  all,  what 
should  determine  his  conclusions,  is  the  way  in  which 
this  fact  appears  in  the  human  consciousness,  the 
reaction  of  this  fact  on  human  decision.  So  finally, 
all  social  facts  may  be  said  to  be  facts  of  consciousness. 
How  do  men  think  of  the  human  community?  What 
does  a  man  want  when  under  the  influence  of  this  fact? 
This  is  the  real  question. 


268  LÉON  DUGUIT  [Ch.  ix 

4:  The  Will  to  Live  the  First  Bond  of  Society. 
Individual  states  of  mind  on  this  point  have  been  in- 
finitely diverse  and  complex.  Always  and  everywhere, 
varied  elements  have  contributed  to  the  formation  of 
these  states  of  consciousness,  elements  interior  and 
exterior,  elements  which  cannot  be  enumerated  and 
determined.  Never  have  they  been  more  complex 
and  diverse  than  in  our  own  times,  never  more  confused 
with  one  another;  yet  an  observer  will  find  presently  a 
sentiment  both  sufficiently  simple  and  sufficiently  gen- 
eral to  be  found  again  in  every  human  consciousness 
in  every  epoch,  —  the  sentiment  of  individual  life,  which, 
in  defining  itself  in  the  consciousness  of  the  individual, 
becomes  a  thought  tending  to  exterior  expression  and 
gives  birth  to  the  will  to  live.  Perhaps  this  sentiment 
grows  complicated  in  highly  civilized  societies,  and 
becomes  deformed  in  some  refined  spirits, i"  but  at 
bottom  it  remains  universal  and  unchanged.  It  appears 
especially  as  that  constant  aspiration  of  man  to  lessen 
the  sum  of  his  suffering,  to  experience  the  least  evil; 
it  is  not  a  quest  for  happiness  —  the  philosophers  may 
be  right,  happinness  may  be  absolute  and  unknowable  — 
but  to  lessen  the  suffering  of  the  moment.  The  con- 
sciousness of  individual  life  brings  with  it  the  ivill  to  live; 
that  is,  the  will  to  escape  everything  which  is  destructive 
of  life,  or,  what  is  the  same  thing,  to  lessen  the  sum  of 
human  suffering.  This  consciousness  of  an  individual 
life  and  this  aspiration  towards  the  least  evil  are  in- 
herent in  all  men  everywhere  and  always.  This  com- 
munity of  sentiment  and  tendency  constitutes  a  first 
bond  between  them.  It  is  the  consciousness  of  human 
solidarity  in  all  its  generality,  but  it  is  and  remains  the 
consciousness  of  individuals.  The  common  sentiment 
of  the  similarity  of  desires  and  needs  is  the  psychological 

1"  Durkheim,  "Le  Suicide"  (1898). 


§184]  SOCIAL  SOLIDARITY  26Ô 

form  in  which  appears  this  union  of  all  humanity.  At 
first  obscure  and  isolated,  sporadic,  so  to  say,  this  senti- 
ment becomes  clearly  defined  and  general  with  the  pro- 
gress of  civilization,  and  we  firmly  believe  that  the 
consciousness  of  human  solidarity  may,  in  our  time,  be 
considered  as  an  integral  part  of  the  intellectual  in- 
heritance of  man.  Marion  could  justly  say,  "Any 
intercommunicating  group  of  living  beings  is  a  society 
in  the  general  sense  of  the  word.  In  this  sense,  the 
whole  human  race  forms  a  single  immense  society." ^^ 
Nevertheless,  this  sentiment  of  human  solidarity  is  an 
exclusively  individual  sentiment. 

5:  This  Bond  Peculiarly  Unites  Man  to  a  Cer- 
tain Group.  In  fact  we  may  go  further.  Any  one 
can  easily  see  that  certain  men  are  more  peculiarly 
bound  to  one  another  than  others.  In  the  vast  com- 
munity of  humanity,  certain  more  or  less  coherent 
groups  are  distinct  from  others,  and  often,  nearly  always, 
in  mutual  strife.  Even  at  a  time  when  men  have  a 
definite  sentiment  of  the  solidarity  which  unites  them, 
each  one  believes  even  more  firmly  that  he  is  peculiarly 
united  to  a  certain  particular  group.  Hence  the  parti- 
cular groups  which  appear  to  the  human  consciousness 
in  the  same  aspect  as  the  whole  human  community. 
The  social  concept  becomes  clearer  and  better  defined, 
but  it  remains  individual,  and  individuality  increases 
in  proportion  to  and  simultaneously  with  the  tightening 
of  the  bond  of  social  solidarity. 

From  the  moment  when,  impelled  by  dilïerent  in- 
fluences—  a  common  habitat,  origin,  religion,  danger, 
common  sufi'erings  and  victories — the  instinct  of 
self-preservation  appears  to  a  certain  number  of  men 
with  the  same  intensity  and  the  same  characteristics, 
when  they  agree  on  the  way  to  satisfy  it,   especially 

11  "Solidarité  Morale,"  p.  156  (1880). 


270  LÉON  DUGUIT  [Ch.IX 

when  they  feel  clearly  that  they  can  satisfy  these  as- 
pirations and  desires  only  by  life  in  common,  they  then 
become  definitely  conscious  of  a  community  in  their 
individual  thoughts.  In  those  who  are  thus  brought 
together  by  different  and  variable  circumstances,  is 
born  the  sentiment  of  a  narrower  solidarity,  founded 
in  the  belief  that  the  members  of  the  group  have  identical 
needs,  which  can  only  be  satisfied  by  community  life. 
It  is  nothing  more  than  the  eternal  desire  to  diminish 
human  suffering,  the  quest  for  happiness  on  which 
Aristotle  rightly  established  all  his  moral  and  social 
philosophy. ^2  j^  jg  not  the  quest  for  common  hap- 
piness, but  a  quest  in  tommon  for  the  happiness  of  each 
individual.  This  grouping  of  men  into  communities 
is  a  natural  fact  —  the  biological  school  is  right — but  it 
appears  in  the  consciousness  of  the  individual,  as 
the  double  thought  that  the  members  of  the  same 
group  have  the  same  instinct  of  self-preservation  and 
the  same  need  to  lessen  suffering,  and  that  this  double 
result  can  only  be  obtained  through  life  in  com- 
mon. This  double  thought  is  individual.  On  one 
hand  it  proceeds  from  the  strengthening  of  the  social 
bond,  on  the  other  it  makes  social  relations  closer;  it 
is  both  cause  and  effect.  Thus  individualization  and 
socialization  advance  together;  man  is  more  closely 
bound  up  with  a  certain  number  of  his  fellows,  his 
individual  consciousness  is  widened  and  becomes  more 
precise;  he  has  grasped  a  fact  that  he  did  not  previously 
understand,  that  he  is  soUdary  with  all  humanity  and 
more  particularly  with  one  group.  Widening  thus  his 
range  of  ideas,  he  widens  his  personality.  To  this 
extension  of  individuality  corresponds  a  stronger  cohesion 
of  the  social  group,  and  man  becomes  at  once  more 
social   and   more   individual, —  more  social   because  he 

12  Book  I,  "Ethics";  Book  III,  ch.  2ff.,  "Politics." 


§184]  SOCIAL  SOLIDARITY  271 

is  brought  closer  to  others,  more  individual  because  he 
thinks  on  more  subjects. 

6:  But  Individuality  is  Not  Affected.  He  be- 
comes more  individual,  also,  because  he  wants  more 
things.  Will  and  thought,  as  has  been  already  observed, 
are  corollaries.  Will  is  only  a  thought  which  seeks  an 
external  expression,  action  is  only  will  expressing  itself 
externally.  ^^  When  man  understands  more  things, 
when  he  understands  them  better,  he  will  want  more 
things,  his  desire  for  them  will  be  stronger  and  his  ex- 
ternal action  more  intense.  As  soon  as  man  understood 
that  he  had  the  same  needs,  the  same  aspirations  for 
life  as  a  certain  number  of  individuals,  and  furthermore 
that  he  could  meet  these  needs  and  realize  these  aspira- 
tions only  through  community  life,  he  desired  this 
community  life,  and  his  desire  increased  the  better  he 
understood  the  conditions  of  a  diminution  of  suffering 
and  of  a  more  intense  life.  To  the  common  thought  of, 
and  aspiration  towards,  life,  was  added  the  common 
will  to  live,  and  to  live  in  community.  This  will  con- 
tinues to  be  an  individual  will,  because  it  derives  from  the 
thought  of  an  individual,  and  can  only  be  individual, 
like  the  concept  from  v/hich  it  developed.  It  is  moved 
to  action  by  an  end  which,  in  a  sense,  may  be  termed 
collective,  because  it  is  the  same  for  all  the  members 
of  the  group,  but  which  at  bottom  is  an  individual  end, 
for  it  is  the  desire  to  lessen  individual  suffering  through 
community  life.  Even  if  it  were  really  a  collective  end, 
the  will  would  still  be  individual,  because  set  in  motion 
by  an  exclusively  individual  thought.  We  see  no  trace 
of  a  collective  will,  we  see  men  who  have  identical 
thoughts,  identical  desires,  all  of  whom  want  less  suffer- 
ing and  a  better  life  —  men  who  desire  to  live  in  com- 
munity for  this  purpose;  but  it  is  always  individuals 

ii  See  Blondel,  "L'Action"  (1893). 


272  LÉON  DUGUIT  [Ch.IX 

who  think  and  who  will.  It  is  always  the  individual 
ego  which  asserts  itself  and  is  everywhere  ;  the  pretended 
social  ego  is  nowhere  to  be  found. 

7:  This  is  Not  Social  Contract.  The  individual 
will  to  live  in  community,  we  say  —  do  we  not  thus 
get  into  the  theory  of  the  social  contract?  Not  in  the 
least.  The  believers  in  the  social  contract  begin  with 
the  natural  independence  of  man,  and  explain  the  social 
community  by  a  convention  by  which  each  loses  all  or 
part  of  his  natural  independence  and  gains  security  in 
return.  We,  on  the  contrary,  accept  society  as  a  natural 
fact,  shown  by  experience,  and  we  are  interested  in  seeing 
how  the  fact  appears  to  the  individual  consciousness 
and  how  it  acts  on  individual  will.  JWe  do  not  look 
upon  societxas  the  product  of  a  freely  acting  human 
intelligence;  human  intelligence  and  will  model  them- 
selves on  society.  We  do  not  say  society  exists  because 
man  wants  to  live  in  community.  Men  always  have 
lived  and  can  only  live  in  that  manner;  as  soon  as  they 
understood  the  necessity  of  community  life  they  desired 
it,  and  so  became  more  human  because  they  understood 
more  and  wanted  more.  Further,  were  the  hypothesis 
of  the  social  contract  true,  it^oûTdjnot  lead  to  the  dogma 
of  the  collective  will,  as  Rousseau  and  the  men  of  the 
Revolution  fliought.  '^  In  contract  two  or  more  in- 
dividuals want  the  same  thing  or  corollary  things,  their 
wills  call  each  other  into  action;  but  a  single  will  does 
not  arise  from  this  meeting  of  wills.  There  are  and  there 
continue  to  exist  as  many  wills  as  there  are  contracting 
parties.  ^^    Thus  even  with  the  hypothesis  of  the  social 

I*  "Instantaneously,"  says  Rousseau,  "in  the  place  of  the  particular 
person  of  each  contracting  party,  this  act  of  association  produces  a 
moral  and  collective  body.  .  .  which  receives  from  this  same  act  its 
unity,  its  common  ego,  its  life  and  its  will."  "Contrat  Social,"  Book  I, 
chap.  vi. 

16  Cf.  Jellinek,    "System    der    Subjectiven    Rechte,"    p.    194    (1892). 


§184]  SOCIAL  SOLIDARITY  273 

contract,  which  we  vigorously  deny,  our  affirmation 
remains  true:  the  will  to  live  in  community  is  an  indivi- 
dual will,  exclusively  individual.  Imagine  millions  of 
men  with  the  same  wish,  moved  by  the  same  purpose  — 
you  will  not  have  a  collective  will.  We  put  aside  also 
the  doctrine  of  a  social  quasi-contract,  which,  in  these 
last  years,  seems  to  have  seduced  several  distinguished 
minds,  and  which  is  no  more  than  the  social  contract 
more  or  less  disguised.  Nothing  seems  to  us  more  dan- 
gerous than  to  carry  over  into  sociological  observation 
these  expressions  of  an  antiquated  and  artificial  legal 
technic.^^ 

8:  Origin  of  Solidarity  by  Similitude.  From 
this  discussion  it  results  that  the  division  of  humanity 
into  a  certain  number  of  groups  more  or  less  coherent, 
more  or  less  compact,  always  rivals,  often  hostile,  is  a 
natural  fact,  a  consequence  of  the  physical  organization 
of  man,  and  appearing  in  different  forms  under  the  in- 
fluence of  multiple  causes.  It  is  not  this  fact,  however, 
which  especially  interests  the  sociological  jurist;  he 
must  go  deeper  and  see  how  it  is  grasped  by  the  con- 
sciousness of  individuals  and  how  it  acts  on  their  wills. 
Now  it  appears  to  us  that  men,  understanding  that  they 
all  have  the  same  desire  for  life,  the  same  aspiration 
toward  the  least  evil,  conceive  the  idea  of  a  vast  solidarity 
which  unites  them  all.  Noticing  that  their  own  needs 
correspond  more  particularly  with  those  of  a  certain 
group,  they  believe  that  they  are  especially  solidary 
with  the  members  of  that  group,  and  appreciating  that 
alone  life  in  that  group  can  guarantee  them  the  least 
degree  of  suffering,  they  desire  the  maintenance  of  such 
solidarity.  There  is,  then,  a  primal  form  of  solidarity 
among  men,  born  of  a  community  of  thoughts,  needs, 

"  Andler,  "Quasi-Contrat  Social,"  in  RMM  July,  1897.  For  its  re- 
futation from  the  philosophical  standpoint,  see  Darlu,  id.  January,  1898. 


274  LÉON  DUGUIT  [Ch.ix 

and  wishes.  Men  think  of  themselves  as  solidary  with 
each  other  because  they  have  the  same  needs  and  con- 
sequently the  same  desires  and  because  they  understand 
that  they  will  suffer  the  least  evil  in  a  community  life. 
We  term  this  primal  form  of  social  solidarity  solidarity 
through  similitudes}''  It  is  clear  that  we  do  not  and 
cannot  understand  by  solidarity  a  material  bond  uniting 
men  —  solidarity  is  a  thought  of  the  individual  man.  It 
is  nevertheless,  a  reality,  —  is  is  indeed  a  social  reality 
only  because  it  is  an  individual  thought;  only  the 
thought  of  an  individual  is  a  thing  in  itself.  This  soli- 
darity by  similitude  unites  the  men  of  the  same  group, 
and  it  unites  also  all  humanity;  in  first  treating  of  the 
solidarity  of  humanity  we  did  not  in  the  least  intend  to 
imply  that  man  was  conscious  of  the  solidarity  of  man- 
kind before  he  became  conscious  of  the  solidarity  of  the 
group, — rather  the  converse  is  true,  in  our  treatment 
we  proceeded  from  the  simple  to  the  less  simple. 

§  185.  Solidarity  Through  Division  of  Labor.  1: 
Men  Have  Always  Been  Unequal.  Men  have 
similar  thoughts,  desires,  and  wants,  but  at  the  same 
time  they  have  entirely  different  thoughts,  desires,  and 
wants.  They  have  identical  needs,  but  they  have  as 
well  different  needs.  Men  are  not  born  equal,  they 
are  born  different.  The  absolute  natural  equality  of 
men  was  a  postulate  of  the  philosophy  of  the  1700s. 
The  Declaration  of  Rights  of  1789  (article  1)  proclaimed 
that  "men  are  born,  and  are,  free  and  equal  in  right," 
a  formula  exact  enough  if  it  meant  that  all  men  have  an 
equal  right  to  the  protection  of  positive  law,  but  wrong 
if  it  meant  that  all  men  are  in  fact  equal  and  should 
consequently  play  the  same  rôle  in  society.    The  natural 

"  Dtirkheiin  names  it  "mechanical  solidarity,"  an  expression  which 
is  inexact  because  it  seems  to  imply  the  application  of  physical  law  to 
society.     "Division  du  Travail  Social,"  p.  73  (1893). 


§185]  SOCIAL  SOLIDARITY  275 

fact,  as  they  called  it  in  the  eighteenth  century,  is  not  that 
men  are  equal,  but  that  they  are  unequal,  and  the 
general  tendency  of  evolution  is  towards  an  ever  greater 
inequality.  A  social  group  marked  by  complete  homo- 
geneity has  never  been  shown  to  exist.  Such  mathe- 
matical equality  of  men  must  be  denied  until  it  is  scienti- 
fically shown  that  societies  either  have  existed  or  exist 
in  which  it  has  occurred  or  now  occurs.  According  to 
Durkheim,  ^^  nevertheless,  "Even  if  it  be  true  that  a 
society  has  never  been  observed  which  responded  in 
every  way  to  this  description,  its  existence  may  be 
postulated,"  because  "lower  forms  of  society,  those  which 
are  in  consequence  nearest  to  this  primitive  stage,  are 
formed  simply  by  multiplying  aggregates  of  this  type." 
The  author  himself  admits  that  this  is  no  more  than 
a  postulate,  that  is,  an  hypothesis,  the  falsity  of  which 
is  not  demonstrated  but  which  is  only  an  hypothesis. 
In  the  clan,  the  differentiation  would  exist  between 
the  groups  which  compose  it,  but  not  between  members 
of  each  group.  Is  that  not  an  admission  that  in  the 
most  primitive  societies  which  can  be  directly  observed, 
there  is  a  differentiation  between  individuals?  To 
admit  that  the  differentiation  only  exists  between  the 
different  aggregates  is  to  say  that  each  aggregate  is  a 
reality,  and  that  is  to  start  with  an  a  priori  assertion. 
Anyway,  the  component  parts  of  the  clan  are  at  once  the 
different  hordes  which  compose  it,  and  the  individual 
members  of  those  hordes.  If,  then,  differences  exist 
between  the  different  hordes,  there  is  likewise  a  difference 
between  the  individuals  who  compose  the  clan.  The 
fact  is  not  affected  by  the  assertion  that  the  component 
parts  are  formed  of  homogeneous  elements.  Herbert 
Spencer  seems  to  us  nearer  the  truth  when  he  says 
that  there  has  always  been  one  difference  between 
""Division  du  Travail  Social,"  p.  189  (1893). 


276  LEON  DUGUIT  [Ch.IX 

individuals  recognized  by  all,  which  necessarily  has  con- 
sequences—  the  difference  between  men  and  women. 
"Men  and  women  being,  by  the  unlikenesses  of  their 
functions  in  life,  exposed  to  unlike  influences,  begin 
from  the  first  to  assume  unlike  positions  in  the  com- 
munity as  they  do  in  the  family."  ^^  But  the  English 
philosopher  would  seem  to  go  too  far  when  he  tries  to 
show  that  this  difference  of  sexes  formed  the  first  poli- 
tical differentiation,  the  first  distinction  between  rulers 
and  ruled.  This  differentiation,  as  we  hope  to  prove,  is 
only  a  distinction  between  strong  and  weak,  and  the 
difference  between  strength  and  weakness  has  not  always 
corresponded  to  the  difference  of  sex.  An  infinitude  of 
other  circumstances  have  had  a  share  in  it  —  difference 
in  physical  strength,  in  temperament,  in  the  super- 
natural power  which  was  necessarily  attributed  to 
certain  members  of  the  primitive  group.  However 
that  may  be,  the  fact  itself  seems  beyond  any  question. 
No  record  exists  of  a  human  community  in  which  the 
homogeneity  of  the  individuals  composing  it  was  com- 
plete and  absolute. 

2:  Inequality  Increases  with  Increasing  Civil- 
ization. It  is  true,  however,  that  primitive  men  must 
have  been  more  alike  than  civilized  men.  Differentiation 
has  progressed  in  the  same  measure  as  civilization,  or 
to  be  more  exact,  civilization  itself  is  nothing  more  than 
the  accentuation  of  dissimilarities  between  individuals. 
Progress  and  civilization  appear  to  many  minds  as  a 
steady  advance  towards  a  higher  ideal,  conceived  a 
priori  by  human  intelligence.  We,  however,  observe 
but  one  thing,  a  constantly  continuing  transformation 
of  men  resulting  in  more  ideas,  more  aspirations,  more 
varied  needs  for  each  one,  and  providing  them  with  means 
of  realizing  such  aspirations  and  needs  more  quickly. 

"Spencer,  "Principles  of  Sociology,"  2d  éd.,  pt.  v,  vol.  ii,  §454,  p.  289. 


§  185  ]  SOCIAL  SOLIDARITY  277 

Increase  of  needs,  and  decrease  of  time  needed  to  satisfy 
them,  constitute  progress  and  civilization.  Is  there  at 
the  same  time  an  approach  to  an  ideal  of  happiness 
and  justice?  That  is  what  we  would  like  to  believe, 
but  it  cannot  be  scientifically  shown.  It  is  equally 
evident  that  if  by  this  evolution,  termed  civilization, 
man  thinks,  wants,  and  can  accomplish  more,  each  man 
will  necessarily  differ  more  from  the  rest.  Every  human 
individuality  becomes  more  complex  and  therefore  will 
be  less  like  the  others.  The  two  Iroquois  of  whom 
Durkheim  speaks  ^^  are  sensibly  equal,  their  states  of 
consciousness  are  sensibly  identical,  if  we  compare  the 
slight  differences  which  distinguish  them  from  one 
another,  with  the  wide  divergence  between  two  French- 
men of  the  twentieth  century.  Every  man,  every 
modern  man  in  particular,  has  his  own  capabilities, 
aspirations,  and  desires,  and  every  man  creates,  so  to 
speak,  his  own  world.  Variations  of  physical  tempera- 
ment are  innumerable,  variations  of  intellectual  and 
moral  temperament  no  less  so.  Inequality  is  everywhere 
and  civilization  is  only  the  increase  of  this  inequality. 
The  growing  multiplicity  of  individual  needs  implies 
a  growing  diversity  among  individuals.  All,  assuredly, 
have  one  common  aspiration,  the  lessening  of  individual 
suffering;  but  each  one  perceives  different  ways  of  at- 
taining this  single  end  of  all  human  effort,  and  in  con- 
sequence has  different  needs,  which  vary  with  different 
classes  of  society  and  also  with  the  individuals  in  each 
class.  The  differentiation  of  capabilities  is  concordant 
and  corollary.  The  fact  is  certain;  it  may  be  explained 
physiologically  and  psychologically.  Physiologically, 
the  need  creates  the  organ,  that  is,  special  capabilities 
come  into  being  to  serve  the  needs,  and  if  the  needs  differ, 
so   will    the   capabilities   differ.     Psychologically,    each 

"  "Division  du  Travail  Social,"  p.  190. 


278  LÉON  DUGUIT  [Ch.ix 

internai  aspiration  tends  to  externalization  and  to  become 
action;  if  internai  aspirations  differ,  the  activities  by 
which  they  are  openly  manifested  will  differ.  Thus 
the  differentiation  of  individual  capabilities  and  activities 
accompanies  and  keeps  pace  with  the  differentiation  of 
individual  needs.  To  sum  up,  civilization  is,  at  bottom, 
nothing  more  than  a  greater  differentiation  among  men 
who,  with  more  desires  and  more  activities,  show  greater 
differences  in  their  desires  and  activities.  Increase  of 
needs  and  of  activities,  everywhere  diversity  of  needs  and 
activities,  are  all,  at  bottom,  only  an  increase  of  human 
individuality.  Each  one  is  more  individual  because  he 
is  more  himself  and  feels  a  greater  difference  from  others. 
3:  But  the  Idea  of  Equality  is  a  Product  of 
Civilization.  Nevertheless,  the  progress  of  civilization 
certainly  concords  with  the  birth  and  development  of 
egalitarian  ideas.  Only  at  a  very  advanced  stage  of 
civilization  was  the  equality  of  men  affirmed  and  were  cer- 
tain social  consequences  attached  to  it.  It  is  particularly 
in  our  century  that  the  idea  of  equality  has  entered  the 
minds  of  men,  and  nevertheless  men  have  never  at  any 
period  of  history  been  so  different.  We  believe  that  this 
is  not  self-contradictory.  Without  going  to  the  bottom 
of  the  question,  it  is  enough  to  note  that  the  idea  of 
equality  might  be  a  distinct  social  fact,  explained  by 
reasons  of  its  own,  and  an  indirect  consequence  of  and  a 
reaction  from  the  increasing  differentiation  of  men.  The 
necessity  of  proclaiming  the  equality  of  men  was  not 
felt  until  the  differences  between  them  were  appreciated. 
There  is  no  question  of  the  equality  of  men  in  a  society 
composed  of  sensibly  homogeneous  elements,  because 
such  people  feel  that  their  needs  are  equal;  equality 
of  needs  is  the  essential  if  not  the  only  factor  which  unites 
them,  and  the  idea  of  equality  cannot  be  disengaged  from 
the  more  comprehensive  and  simpler  idea  of  solidarity 


§185]  SOCIAL  SOLIDARITY  279 

through  simihtudes.  The  concept  of  equaUty  does  not 
become  autonomous  until  differences  between  individuals 
appear  and  are  taken  into  consideration;  men  then 
understand  better  that  in  spite  of  these  differences  they 
have  a  community  of  aspiration,  and  especially  that  all 
are  equal  in  the  fact  of  suffering,  and  in  a  common  desire 
to  avoid  it,  or  to  lessen  the  frequency  of  its  occurrence. 
The  idea  of  equality  then  is  separated  from  that  of  soli- 
darity by  similarity  and  gets  exterior  expression.  This 
is  not,  however,  the  true  explanation  of  this  phenomenon. 
The  progress  of  individual  differentiations  and  of  egali- 
tarian ideas  is  parallel.  This  is  necessarily  so,  for  the 
two  are  manifestations  of  the  same  fact  —  the  increase 
of  individuality.  To  proclaim  the  equality  of  men  is 
not  to  proclaim  that  all  are  exactly  the  same,  but  that 
each  has  individually  a  worth  which  is  equally  to  be 
respected  in  human  relations.  To  a  superficial  mind, 
the  equality  of  men  signifies  that  they  are  all  exactly 
the  same;  to  those  who  go  to  the  bottom  of  things  and 
scrutinize  the  profound  causes  by  which  this  idea  has 
been  brought  into  existence,  the  equality  of  men  is  the 
recognition  of  an  equal  protection  for  the  worth  of  each 
man.  Men  differ  in  worth,  differ  in  individuality, 
nevertheless  they  are  equal  in  worth,  not  in  degree  or 
in  quality,  but  by  nature,  because  for  each  worth  is 
individual.  And  when  the  notion  of  solidarity  through 
division  of  labor  has  definitely  penetrated  men's  minds, 
the  idea  of  equality  is  strengthened  the  more,  for,  with 
the  realization  that  the  more  men  differ  one  from  another 
the  greater  becomes  their  mutual  usefulness,  comes  a 
better  understanding  of  the  fact  that  individual  activi- 
ties, though  different,  are  nevertheless  socially  equal, 
since  they  all  contribute  to  social  solidarity. 

But  do  not  let  us  anticipate.     Let  us  merely  add  that 
the  proof  that  the  idea  of  equality  results  directly  from 


280  LÉON  DUGUIT  [Ch.IX 

the  increase  in  individuality,  lies  in  the  fact  that  all  of 
the  philosophical  and  religious  systems  which  were  based 
on  individualism  ended  in  a  very  clear  affirmation  of  the 
equality  of  men.  This  is  just  as  true  of  Stoicism  and  of 
Christianity  as  of  the  philosophy  of  the  1700s  and  of  the 
doctrines  associated  with  Proudhon.^^ 

4  :  This  Form  of  Solidarity  Stronger  than  Soli- 
darity BY  Similitude.  The  increasing  differentiation 
between  men  is  then  an  undeniable  fact,  and  is  perfectly 
to  be  conciliated  with  ideas  of  equality.  What  have 
been  the  principal  causes  of  this  differentiation?  To 
study  them  in  detail  would  be  to  study  the  whole  history 
of  civilization.  We  shall  indicate  some  of  the  elements 
in  the  following  paragraph.  One  point  is  now  settled  — 
a  constantly  increasing  diversity  in  capabilities  and  in 
needs.  This  fact  becomes,  in  the  human  consciousness 
and  will,  the  thought  that  through  the  exchange  of  the 
services  which  each  is  best  fitted  to  render  men  will  be 
able  to  diminish  human  suffering,  that  by  developing 
their  individual  activity  they  will  have  more  to  exchange, 
will  consequently  diminish  further  the  sum  of  their 
unhappiness;  and  it  comes  to  this  —  the  will  to  develop 
such  activity  and  to  exchange  such  services  by  the  con- 
sciousness of  a  new  form  of  solidarity  which  we  term  with 
Durkheim  solidarity  through  division  of  labor.  This  bond 
of  union  among  men  is  not  a  community  of  thoughts 
and  wants,  it  is  on  the  contrary  a  difference  of  thoughts 
and  wants,  a  difference  of  desires  and  needs;  men  think 
of  themselves  as  bound  together  because  they  all  have 
different  capabilities  and  different  needs,  and  because  by 
an  exchange  of  services  they  can  assure  the  satisfaction 
of  their  different  needs. 


51  See  Bougie,  "Les  Idées  Égalitaires"  (1899),  who,  however,  does  not 
in  our  opinion  insist  sufficiently  on  this  idea.  Faguet,  "Politiques  et 
Moralistes  du  XIX  siècle,"  third  series,  pp.  119ff.  (1900). 


§185]  SOCIAL  SOLIDARITY  281 

This  form  of  solidarity  is  infinitely  stronger  than  soli- 
darity by  similitude,  but  springing  from  the  same  root, 
the  development  of  individual  consciousness.  The  social 
bond  is  drawn  closer,  for  socialization  increases  with  the 
division  of  labor;  but  the  development  of  individual 
activity  —  the  creation  of  vocations  —  is  an  essential 
factor.  Without  individual  vocations  there  is  no  divi- 
sion of  labor.  This  kind  of  solidarity  is  the  condition 
of  a  strong  social  structure,  but  it  is  itself  conditioned  by 
the  intensive  increase  of  individuality.  Socialization 
increases  in  direct  proportion  to  division  of  labor,  but 
division  of  labor  itself  increases  in  direct  proportion  to 
individualization,  so  that  socialization  and  individualiza- 
tion not  only  are  not  mutually  exclusive,  but  one  goes 
with  the  other.  There  is  no  opposition  between  indi- 
vidual and  collective  interests,  and  the  suggestion  that 
there  is  comes  from  a  superficial  view  of  solidarity.  For 
many  solidarity  means  simply  recognition  of  the  col- 
lective interest,  and  those  who  preach  solidarity  preach 
the  sacrifice  of  individual  to  collective  interests.  Have 
not  socialistic  doctrines  been  sometimes  defined  as  those 
which  tend  to  bring  about  a  predominance  of  altruism 
over  egoism,  or  collective  over  individual  objects? 
This  is  all  false.  Those  who  can  see  under  the  surface 
of  things,  who  understand  that  the  essential  factor  in 
modern  social  combination  is  division  of  labor,  the 
exchange  of  services,  and  that  division  of  labor  is  impos- 
sible without  a  wide  and  free  development  of  individual 
activity,  are  convinced  that  the  essential  factor  of  social- 
ization is  the  development  of  individual  activity .^^ 
The  consequences  which  we  shall  have  later  to  draw  from 
this  idea,  when  we  are  determining  the  power  and  duties 
of  the  State,  are  already  evident.  To  use  consecrated 
expressions,  we  shall  be  very  individualistic  and  very 

«  See  the  article  by  Jaurès  in  Revue  de  Paris,  Dec.  1,  1898,  p.  481. 


282  LÉON  DUGUIT  [Ch.ix 

socialistic, —  very  individualistic  in  refusing  to  the  State 
the  power  to  impede  the  free  development  of  individual 
activities,  and  in  imposing  on  it  the  duty  of  protecting 
such  activities,  but  very  socialistic  in  recognizing  in 
the  State  widely  extended  powers  of  intervention  and 
in  imposing  on  it  very  rigorous  duties.  In  any  case, 
one  point  seems  to  us  certain,  and  it  is  capital;  the 
degree  of  social  integration  depends  on  the  degree  of 
individualization;  there  is  no  collective  interest  in 
opposition  to  individual  interest,  and  collective  interest 
is  merely  the  sum  of  individual  interests;  in  other  words, 
the  collective  interest  will  be  safeguarded  by  the  pro- 
tection of  all  individual  interests,  and  better  safe- 
guarded the  better  they  are  protected. 

5:  This  Solidarity  Due  to  the  Desire  to  Lessen 
Suffering.  How  are  the  consciousness  and  the  prac- 
tice of  solidarity  through  division  of  labor  brought  about? 
By  the  desire  to  lessen  individual  suffering.  We  do  not 
say  that  the  cause  of  the  division  of  social  labor  is  the 
quest  for  happiness,  and  we  thus  escape  Durkheim's 
objections  to  hedonism.  ^  That  author  makes  the  just 
observation  that  if  the  quest  for  happiness  was  the  only 
cause  of  the  division  of  social  labor,  that  division  would 
have  stopped,  because  happiness,  if  it  exist,  can  only 
consist  in  one  thing,  the  golden  mean.  However  well 
men  think  that  they  know  in  what  happiness  consists, 
they  really  do  not  know  at  all,  and  they  cannot  work  to 
attain  the  happiness  which  they  do  not  know.  Besides, 
it  is  very  doubtful  if  happiness  does  increase  with  prog- 
ress, with  division  of  labor;  the  increase  of  suicide  with 
the  progress  of  civilization  would  seem  to  indicate  the 
contrary.  All  this  is  very  accurate,  but  it  does  not 
prove  that  the  only  spring  of  human  activity  is  not  the 
search  for  the  least  evil.     It  is  true  that  man  cannot 

23  "Division  du  Travail  Social,"  pp.  255ff. 


§185]  SOCIAL  SOLIDARITY  283 

have  a  clear  idea  what  happiness  in  itself  is.  But  man 
suffers,  wishes  to  suffer  less,  and  wants  all  that  he  believes, 
rightly  or  wrongly,  should  diminish  his  suffering.  It  is 
difffcult,  impossible  even,  to  know  whether  the  sum 
total  of  suffering  in  a  society  which  has  attained  a  certain 
degree  of  civilization  is  less  than  that  existing  in  a 
society  less  highly  civilized.  Even  should  it  be  greater 
our  proposition  would  be  unshaken,  for  men  suffer,  they 
have  different  needs,  they  understand  that  they  have 
different  aptitudes;  and  if  they  understand  at  the  same 
time  that  they  can  satisfy  their  needs  by  exchanging 
services,  if  they  desire  and  practise  exchange  of  services, 
it  is  because  and  only  because  they  believe,  or  if  the  term 
be  preferred,  hope,  that  division  of  labor  will  result  in 
a  diminution  of  suffering.  If  division  of  labor  grows 
continually  more  pronounced,  the  reason  is  that  there  is 
an  ever  increasing  diversity  of  needs  and  desires;  there 
is  always  some  suffering  in  the  world,  and  this  yearning 
for  the  least  evil  is  never  satisfied.  We  can  discuss 
happiness  as  much  as  we  please,  the  fact  of  suffering  is 
ever  present.  Suffering  may  be  called  fruitful  and 
meritorious,  and  elevated  religious  and  ethical  doctrines 
may  be  founded  on  it.  But  in  fact  man  has  desired  and 
always  will  desire  to  suffer  less,  and  this  is  for  us  the 
single  factor  in  his  thoughts  and  in  his  acts. 

6:  Other  Influences  on  Division  of  Labor. 
At  the  same  time  we  freely  admit,  with  Durkheim,  that 
certain  variations  of  social  environment  have  also  in- 
fluenced division  of  labor.  The  general  and  unconscious 
cause  which  has  favored  the  development  of  division  of 
social  labor  is  the  progressive  condensation  of  societies, 
a  condensation  which  has  been  brought  about  in  three 
ways  during  the  course  of  history:  (1)  Population 
has  been  steadily  concentrating  on  smaller  territory, 
(2)  cities  have  grown  and  a  general  tendency  is  mani- 


284  LÉON  DUGUIT  [Ch.iX 

fested  among  country  people  to  go  to  cities,  and  finally 
(3)  the  number  and  rapidity  of  means  of  communication 
have  very  considerably  increased.  In  short,  division 
of  labor  will  vary  in  direct  proportion  to  the  volume  and 
to  the  density  of  societies.  It  will  also  have  organic- 
pyschic  causes.  Heredity  retards  it,  because  heredity 
obstructs  individual  change  and  initiative;  but  for 
various  reasons  heredity  as  an  obstacle  is  becoming  less 
important.  Heredity  is  losing  its  empire  in  the  course  of 
evolution  because  of  the  formation  of  certain  factors 
of  activity  which  have  nothing  to  do  with  it  ;  on  one  side 
the  great  human  races  remain  stationary,  and  on  another 
it  seems  to  be  established  that  there  is  no  transmission 
of  special  aptitudes.^* 

However  this  may  be,  these  things  are  certain:  that 
men  have  different  aptitudes  and  different  needs;  that 
these  differences  increase  steadily  with  the  progress  of 
civilization,  or  rather  are  civilization  itself;  that  men  are 
conscious  of  their  unity,  because  they  know  that  they  can 
satisfy  their  needs  only  by  an  exchange  of  services;  and 
that  this  solidarity  grows  closer  the  more  pronounced  are 
the  differences  in  individual  aptitudes,  for  then  exchanges 
are  more  frequent  and  more  productive.  Consequently 
the  social  bond  grows  the  stronger  as  men  are  more 
sharply  individualized.  Thus  division  of  labor  is  at  once 
an  element  of  solidarity  and  of  individualization.  It 
was  at  first  spontaneous  ;  later  men  became  conscious  of 
it,  and  wanted  it,  as  they  should  want  it.  We  shall  see 
later  that  solidarity  through  division  of  labor  constitutes, 
with  solidarity  by  similitude,  the  foundation  of  the  rule 
of  law.-^ 

24    Durkheim,  "Division  du  Travail  Social,"  pp.  338ff. 
"  ["Règle  de  droit."] 


§186]  THE  RULE  OF  LAW  285 

CHAPTER  X* 

THE  RULE  OF  LAW 

SUMMARY  OF  PRECEDING  ANALYSIS  — THE  PROBLEM 
OF  A   RULE   OF   CONDUCT 

CONSCIOUSNESS  OF  SOCIAL  SOLIDARITY  IMPLIES  CON- 
SCIOUSNESS OF  A  RULE  OF  CONDUCT:  (1)  THE  RULE 
MUST  BE  A  LAW  OF  PURPOSE;  (2)  THE  FIRST  RULE  OF 
CONDUCT;  (3)  A  RULE  PRACTICALLY  UNIVERSAL;  (4) 
THE  SECOND  RULE  OF  CONDUCT;  (5)  THE  THIRD  RULE 
OF  CONDUCT;  (6)  WHY  LEGAL  PRESCRIPTIONS  HAVE 
GROWN  IN  NUMBER;  (7)  CONCLUSION,  THE  COMPLETE 
RULE  OF  CONDUCT 

GENERAL  CHARACTERISTICS  OF  THE  RULE  OF  CON- 
DUCT: (1)  A  RULE  BASED  ON  THE  FACT  OF  SOCIETY; 
(2)  BECAUSE  INDIVIDUAL,  THE  RULE  IS  DIVERSIFIED 
IN  ITS  APPLICATION;  (3)  THE  RULE  OF  CONDUCT  AP- 
PLIES TO  STRONG  AND  WEAK  ALIKE;  (4)  THE  RULE  IS 
PERMANENT  IN  CONTENT,  CHANGING  IN  FORM;  (5) 
THE  RULE  OF  CONDUCT   IDENTIFIED  WITH  SOLIDARITY 

THE  RULE  OF  CONDUCT  IS  THE  RULE  OF  LAW;  IT  IS 
OBJECTIVE  LAW:  (1)  THE  DISTINCTION  BETWEEN  LAW 
AND  MORALS;  (2)  SOLIDARITY  NEITHER  EGOISTIC  NOR 
ALTRUISTIC;  (3)  THE  RULE  IS  ONE  OF  LAW,  RATHER 
THAN  OF  MORALS,  BECAUSE  IT  HAS  ITS  BASIS  IN  SOCIAL 
RATHER   THAN  INTRINSIC  VALUES  OF  CONDUCT 

THE  DOCTRINE  OF  JHERING  AND  JELLINEK  AND  ITS 
REFUTATION:  (1)  UNSOUND  GERMAN  THEORIES  OF  LAW; 
(2)  JHERING'S  DOCTRINE  SUMMARIZED;  (3)  HOW  JHER- 
ING  SUBJECTS   THE   STATE   TO    ITS   OWN  LAW;   (4)  JELLI- 

*[This  chapter  =  chapter  ii  of  the  original  work.  —  Ed.] 


LÉON  DUGUIT  [Ch.X 


NEK  SAYS  THAT  THE  STATE  LIMITS  ITS  OWN  ACTION 
BY  THE  LAW  THAT  IT  CREATES;  (5)  LABAND  SUPPORTS 
THE  SAME  DOCTRINE;  (6)  THE  ERROR  OF  THESE  THEO- 
RIES IN  LAYING  TOO  GREAT  STRESS  ON  ORGANIZED 
SANCTION;  (7)  THE  RULE  HAS  THE  SANCTION  OF  PSY- 
CHOLOGICAL COERCION;  (8)  THE  RULE  OF  LAW  IS  ANTE- 
CEDENT TO  THE  IDEA  OF  THE  STATE;  (9)  MANY  RULES 
ADOPTED  BY  THE  STATE  HAVE  ONLY  A  PSYCHOLOGICAL 
SANCTION;  (10)  FINALLY  OUR  THEORY  PERMITS  LIMI- 
TATION OF  THE  POWERS  OF  THE  STATE;  (11)  THE  GER- 
MAN DOCTRINE  WHICH  DENIES  THAT  CONSTITUTIONS 
ARE  LAWS;  (12)  JELLINEK'S  VIEWS  IN  HIS  "ALLGEMEINE 
STAATSLEHRE";  (13)  POINTS  OF  JELLINEK'S  DOCTRINE 
HERE  ACCEPTED;  (14)  JELLINEK,  HOWEVER,  REGARDS 
THE  LAW  AS  WILLED  BY  THE  STATE;  (15)  THE  ERROR 
OF  TREATING  THE  LAW  AS  CREATED  EXCLUSIVELY  BY 
THE  STATE;  (16)  JELLINEK'S  EXPLANATION  OF  SELF- 
LIMITATION  BY  HISTORICAL  EVOLUTION;  (17)  THE 
DILEMMA   OF   JELLINEK'S   THEORY 

THE  DOCTRINE  OF  GIERKE  AND  PREUSS:  (1)  THE 
THEORY  OF  GIERKE;  (2)  THE  NEED  FOR  EXTERIOR 
LIMITATION  OF  MEN'S  WILLS,  i.e.  LAW;  (3)  LAW  AND 
THE  STATE  PROCEED  TOGETHER;  (4)  THE  STATE  IS  A 
LEGAL  PERSON;  (5)  INDIVIDUALISTIC  DOCTRINARISM 
IN  GIERKE;  (6)  THE  PRIMARY  CONCEPTION  OF  THE 
RULE  OF   LAW. 

§  186.  Summary  of  Preceding  Analysis.  From  the 
preceding  analysis  we  may  conclude  that  in  all  forms 
of  human  communities  there  is  just  one  reality,  the 
human  being,  that  is  to  say,  the  consciousness  and  will 
of  the  individual;  and  this  individuality  appears  to  us 
as  the  more  alive  and  the  more  active,  the  more  coherent, 
complex,  and  comprehensive  is  the  social  group.  Men 
live  in  society,  and  want  to  live  in  society,  (1)  because 


§186]  THE  RULE  OF  LAW  287 

they  are  conscious  of  common  needs  which  they  can 
satisfy  only  by  community  Hfe  (soHdarity  through 
simihtudes) ,  and  (2)  because  they  are  conscious  of  dif- 
ferent aptitudes  and  needs,  and  can  only  assure  the 
satisfaction  of  these  needs  by  an  exchange  of  the  services 
for  which  each  has  a  special  aptitude  (solidarity  through 
division  of  labor).  Man  is  conscious  of  his  individuality 
and  of  the  double  solidarity  which  unites  him  to  his 
fellows;  he  is  both  social  and  individual.  His  individu- 
ality and  his  sociability  are  not  in  opposition,  they  are 
combined  in  a  close  and  indivisible  union,  they  are  in  a 
way  functions  one  of  the  other.  Individuality  grows  in 
proportion  to  the  growth  of  sociability,  sociability  de- 
velops with  individuality.  The  opposition  between  the 
individual  and  the  collective,  so  often  brought  forward, 
does  not  conform  to  the  real  nature  of  things.  In  fact, 
both  fuse  into  a  single  whole,  and  this  whole  is  man 
himself. 

§  187.  The  Problem  of  a  Rule  of  Conduct.  Can  a 
rule  of  conduct  be  drawn  from  this  statement  of  fact, 
and  what  is  this  rule  of  conduct?  Does  man  know  it? 
Has  it  a  sanction,  and  if  so,  what  sanction?  These 
are  the  problems  which  present  themselves  to  every  social 
science  for  solution.  If  they  cannot  be  solved,  social 
science  is  vain;  if,  on  the  contrary,  it  is  able  to  settle 
these  points,  it  has  solved  all  of  its  other  problems  as 
well.  Both  economic  and  legal  problems  come  back  to 
the  question  of  a  rule  of  conduct  which  man  must  obey; 
all  are  problems  of  morals,^  if  by  morals  one  understands 
rules  of  conduct,  truly  human,  without  a  metaphysical 
or  a  priori  foundation.  This  law  [loi]  of  human  wills 
and  actions  we  call  a  rule  of  conduct,  because  it  applies 
to  conscious  acts.  It  cannot  be  a  law  of  causality,  like 
the  laws  of  the  physical  world  ;  it  can  only  be  a  law  of 

^Ziegler,  "La  Question  Sociale  est  une  Question  Morale"  (1898). 


288  LÉON  DUGUIT  [Ch.x 

finality  of  purpose.^  We  do  not  learn  it  from  the 
regular  reproduction  of  causes  and  effects,  but  from 
man's  consciousness  of  it  when  he  acts.  It  does  not 
appear  as  a  relation,  but  as  an  imperative.  This  im- 
perative character  does  not  imply  that  man  is  free  in 
the  sense  of  Spiritualist  philosophy;  it  supposes  only 
what  is  undeniable,  that  man  selects  consciously  the 
motives  which  determine  his  acts,  or  which  he  believes 
determine  them.  Because  they  misunderstood  this, 
and  tried  to  carry  over  into  the  world  of  society  the 
mechanism  of  the  physical  world,  the  first  systems  of 
sociology  died  out.  It  is  not  enough,  as  was  claimed 
by  their  authors,  to  found  a  system  of  morals  by  de- 
termining the  evolution  of  the  moral  conceptions  of 
humanity.  That  is  only  to  avoid  the  problem,  which 
must  be  solved  by  determining  what  rule  of  conduct 
in  a  given  epoch  binds  the  conscious  activity  of  man, 
an  attempt  in  which  the  young  French  school  of  phil- 
osophy and  sociology  is  remarkably  exerting  itself.  We 
do  not  intend  to  study  the  problem  on  all  sides,  but  only 
to  show  that  the  notion  of  social  solidarity  implies  the 
conception  of  a  rule  of  conduct,  sufficient  to  determine 
the  powers  and  the  duties  of  social  man  in  general  and 
of  the  man  invested  with  political  authority  in  particular.^ 

2  See  §  179  ante.  On  the  character  of  the  social  7wrm  and  its  differ- 
ence from  laws  of  causality,  cf.  Wundt,  "Ethik,"  pp.  2ff..  462ff.  [the 
English  translation,  "Ethics,"  3  v.,  London,  1897,  retains  the  pagination 
of  the  German  edition];  Jellinek,  "Die  social-ethische  Bedeutung  von 
Recht,  Unrecht,  und  Strafe,"  pp.  19ff.,  and  "Allgemeine  Staatslehre," 
pp.  17ff.,  123  (1900);  Jhering,  "Law  as  a  Means  to  an  End"  [trans- 
lated in  this  Series],  pp.  2ff. 

5  See  notably  Durkheim,  "Division  du  Travail  Social."  Although 
a  sociologist,  the  author  has  well  understood  the  capital  importance 
of  the  ethical  problem.  Cf.  Raiih,  "Essai  sur  le  Fondement  Méta- 
physique de  la  Morale,"  especially  p.  194  (1890)  ;  Fouillée,  "Critique  des 
Systèmes  de  Morale,"  especially  Preface  and  Conclusion  (1893);  Guyau, 
"Esquisse  d'une  Morale  sans  Obligation  ni  Sanction,"  especially  pp.  75ff.  ; 
Blondel,  "L'Action"  (1893).  To  our  mind,  these  authors  make  the  mis- 
take of  giving  too  much  weight  to  metaphysical  speculations. 


§188]  THE  RULE  OF  LAW  289 

§  188.  Consciousness  of  Social  Solidarity  Implies 
Consciousness  of  a  Rule  of  Conduct.  1  :  The  Rule  Must 
BE  A  Law  of  Purpose.  The  law  whose  formula  we 
seek  cannot  be,  as  we  have  remarked,  a  law  of  causality, 
but  is  a  law  of  purpose  (finality),  because  it  is  the  law  of 
the  conscious  actions  of  man,  and  because  he  acts  only 
in  view  of  an  end  which  he  chooses  more  or  less  con- 
sciously, if  not  freely.  This  end  is  in  our  opinion  only 
the  immediate  end  which  determines  action.  It  is  not 
a  general,  transcendent  finality,  but  an  immanent  and 
special  finality.  We  have  not  to  found  some  sort  of 
teleological  system,  but  to  determine  directly  the  value 
of  each  human  act.  Now  this  act  can  be  valued  only 
with  reference  to  the  end  determining  it,  for  in  itself 
the  act  is  nothing.  It  is  only  an  external  emanation  of 
individual  will;  it  can  then  be  estimated  only  in  terms 
of  the  will  whence  it  comes,  and  this  will  acts  only  when 
determined  by  an  end.  It  all  comes  back  then  to  the 
value  of  that  end,  which  exists  only  as  it  is  conceived 
by  the  doer  of  the  act.  The  problem  thus  becomes: 
When  is  the  end  which  the  doer  of  the  act  thinks  de- 
termined him  to  act,  of  such  a  nature  as  to  give  a  certain 
value  to  his  act?  If,  however,  the  question  be  supposed 
as  answered,  if  it  be  admitted  that  the  end  which  de- 
termined a  certain  conscious  act  gave  it  a  value,  it  is  left 
to  be  decided  just  what  that  value  is.  Let  us  explain 
this  further. 

2:  The  First  Rule  of  Conduct.  Imagine,  by 
hypothesis,  a  society  in  a  state  of  absolute  rest.  So 
long  as  no  one  takes  any  action,_the  problem  of  the  rule 
of  conduct  does  not  arise,  for  the  rule  of  conduct  implies 
wills  entering  into  relations,  and  if  no  will  shows  itself 
externally  there  is  no  occasion  for  applying  a  rule  of 
conduct.  Theoretically  such  a  conception  is  possible, 
though  the  situation  cannot  actually  arise.     The  rule  of 


290  LÉON  DUGUIT  [Ch.X 

conduct,  if  there  is  one,  appears  only  when,  in  the  case  of 
a  will  expressing  itself  in  an  external  act,  the  value  of 
this  act  must  be  estimated.  Then  the  value  of  the  act 
can  consist  only  in  this:  the  obligation  of  all  to  do 
nothing  contrary  to  the  realization  of  this  individual 
will,  and  the  obligation  of  every  person  to  do  what  he 
can  to  assure  its  realization.  We  then  say  that  the  act 
has  social  value.  But  when  will  an  act  of  individual 
will  have  this  social  value?  Obviously,  when  it  is  de- 
termined by  an  end  corresponding  to  social  solidarity  — 
solidarity  through  similitudes  or  solidarity  through  divi- 
sion of  labor.  An  act  of  individual  will,  determined 
by  such  an  end,  imposes  itself  upon  everybody.  That 
is,  indeed,  a  necessary  and  logical  consequence  of  soli- 
darity. Man  is  man  only  by  virtue  of  solidarity,  which 
unites  him  to  like  men;  only  through  this  solidarity  can 
he  succeed  in  diminishing  the  sum  total  of  human  suffer- 
ing. Consequently  every  act  of  individual  will  which 
tends  to  realize  this  solidarity  should  forcibly  possess 
itself  of  every  man's  respect.  To  put  the  matter  as 
simply  as  possible,  if  one  supposes  a  society  in  a  state  of 
absolute  rest,  indeed  there  is  no  rule  of  conduct;  the 
notion  of  a  rule  of  conduct  exists  only  from  the  moment 
when  a  will  showing  itself  externally  faces  the  task  of 
ascertaining  whether  this  will  may  impose  itself  on 
others  —  and  it  will  so  impose  itself  if  the  will  is  de- 
termined by  an  end  adequate  to  social  solidarity.  Whence 
comes  this  first  rule  of  conduct,  common  to  all  men: 
Respect  every  act  of  individual  will  determined  by  an  end 
of  social  solidarity.  Do  nothing  to  prevent  its  accomplish- 
ment. Cooperate  as  far  as  possible  towards  its  accom- 
plishment. 

3:  A  Rule  Practically  Universal.  This  notion 
of  a  first  rule  of  conduct  must  have  come  very  early  into 
the  human  mind,  if  it  was  not  always  there.     More  or 


§188]  THE  RULE  OF  LAW  291 

less  indistinctly,  man  has  always  thought  of  himself  as  at 
once  individual  and  social.  He  has  always  lived  with 
other  men  and  thus  has  always  been  conscious  of  his 
solidarity  with  them,  though  this  consciousness  was, 
for  a  long  time,  very  obscure.  From  tlie  moment  when 
man  had  this  idea  he  had  the  feeling  of  being  subject  to 
this  solidarity;  from  the  moment  in  which  he  realized 
that  solely  through  community  life  could  he  exist  and 
diminish  his  suffering,  he  understood  that  he  was  himself 
subjected  to  every  act  of  another  calculated  to  maintain 
or  strengthen  this  solidarity.  Consciousness  of  this  rule 
of  conduct  consequently  blended  with  consciousness  of 
social  solidarity.  So  there  are  certainly  no  human 
societies,  however  primitive,  without  the  consciousness 
more  or  less  clear  that  men  are  subject  to  certain  rules 
of  conduct.  These  rules  may  be  very  narrow,  the 
peculiarity  of  their  provisions  may  astonish  us,  men  may 
be  only  vaguely  conscious  of  them,  and  they  may  be  con- 
tinually violated  by  triumphant  force;  nevertheless  not 
a  single  human  community  will  be  found  without  this 
notion  of  a  rule  of  conduct,  imposed  upon  man  because 
of  the  fact  that  men  live  together.  This  every  ethno- 
graphic and  sociological  study  shows.  Of  course  the 
idea  of  this  first  rule  of  conduct,  becoming  confused  with 
the  sentiment  of  social  solidarity,  will  naturally  follow 
the  same  evolution  as  this  solidarity  and  undergo  cor- 
responding transformations.  Notably  in  the  forms  of 
society  in  which  solidarity  through  division  of  labor 
becomes  preponderant,  this  rule  will  impose  respect  for 
every  act  of  will  furthering  the  free  development  of  in- 
dividual activity.  Individual  activity  being,  in  truth, 
the  essential  tactor  of  solidarity  through  division  of 
labor,  every  act  tending  to  widen  the  scope  of  individual 
activity  will  be  determined  by  an  end  of  solidarity,  if 
it  does  not  at  the  same  time  restrict  the  special  activity 


292  LÉON  DUGUIT  [Ch.X 

of  other  individuals,  and  this  act  will  possess  itself  of  the 
respect  of  all.  It  seems  to  be  a  purely  individual  act, 
but  it  is  not  so  at  bottom,  since  it  is  determined  by  an 
end  of  solidarity;  and  by  virtue  of  that  fact  it  is  imposed 
upon  everybody.*  Variations  matter  little,  this  fact 
always  remains  :  with  the  consciousness  of  the  solidarity 
which  unites  him  to  his  fellows  and  without  which  life 
would  be  impossible,  there  comes  to  man  the  idea  of  a 
rule  imposing  respect  for  every  act  of  an  individual  will 
determined  by  an  end  of  social  solidarity,  whatever  be 
the  form  which  social  solidarity  may  have  assumed  in 
this  or  that  society. 

4:  The  Second  Rule  of  Conduct.  Such,  in  the 
history  of  the  human  mind,  was  the  first  notion  of  a  rule 
of  conduct.  This  notion  contained  in  itself  the  germs  of 
all  of  the  subsequent  developments  which  it  was  to  re- 
ceive in  the  natural  progress  of  individual  consciousness. 
If  every  act  of  the  will  of  an  individual  determined  by 
an  end  of  social  solidarity  receives  the  respect  of  all 
other  individuals,  it  is  evident  that  every  act  of  will 
which  does  not  fulfill  this  condition  lacks  such  respect. 
If  e\'ery  individual  has  socially  the  power  to  perform  an 
act  inspired  by  an  end  of  social  solidarity,  no  individual 
has  power  to  perform  an  act  inspired  by  a  different  end. 
If  every  individual  is  under  a  duty  to  respect  an  act 
adequate  to  social  solidarity,  no  one  is  under  a  duty 
to  respect  an  act  disagreeing  with  it.  Developing  this 
idea,  one  may  even  conceive  that  every  individual  is 
empowered  to  protect  the  social  solidarity  from  acts 
attacking  it,  or  to  repair  any  injury  done  it  by  such  acts; 
and  consequently  there  will  be  developed  the  sentiment 
of  a  duty  of  the  individual  not  to  do  such  acts.  The 
notion  of  a  second  rule  of  conduct  is  then  logically  de- 
veloped from  the  first:  Every  individual  ought  to  abstain 

«  See  §  189  post. 


§188}  THE  RULE  OF  LAW  293 

from  any  act  that  would  he  determined  by  an  end  contrary 
to  social  solidarity.  This  rule  is  at  bottom  the  same  as 
the  preceding  one,  and  like  it  is  contained  in  the  con- 
sciousness of  social  solidarity,  and  will  mirror  exactly 
the  different  aspects  of  that  solidarity  in  accordance 
with  conditions  of  time  and  place.  The  range  of  this 
prohibitive  rule  will  vary  with  the  range  and  complexity 
of  the  solidarity  which  unites  the  members  of  this  or 
that  society,  but  it  will  remain  at  bottom  always  the 
same.  For  it  was  born  with  the  consciousness  of  social 
solidarity,  that  is,  ever  since  men  have  existed;  it  will 
continue  as  long  as  men  exist,  infinitely  variable  in  its 
application,  but  immutable  in  its  original  principle. 

It  is,  then,  apparent  that  the  consciousness  of  social 
solidarity  implies  the  notion  of  a  double  rule  of  conduct  — 
the  obligation  on  each  individual  to  respect  every  act 
of  an  individual  will  done  with  a  purpose  of  social  solid- 
arity, and  an  obligation  on  each  individual  to  do  nothing 
with  a  purpose  not  in  conformity  with  social  solidarity  — 
and  we  may  affirm  that,  in  every  stage  of  civilization, 
man  has  had  the  conception  of  this  double  rule.  He 
has  conceived  and  applied  it  in  greatly  varying  forms. 
Even  in  societies  which  have  attained  a  practically 
identical  stage  of  civiHzation,  these  applications  may 
differ  profoundly;  but  the  abstract  idea  of  this  double 
rule  is  always  the  same,  being  nothing  more  than  the 
idea  of  social  solidarity  in  its  two  fonns. 

5  :  The  Third  Rule  of  Conduct.  Has  man  gone 
further?  Has  he  acquired  the  sentiments  of  a  third  rule 
of  conduct?  Up  to  the  present,  we  have  supposed  an 
act  of  will  as  accomplished,  and  have  said:  In  one  case 
man's  duty  is  to  respect  it,  in  another,  he  has  the  power 
of  repressing  it.  It  follows  then  that  his  duty  is  not 
to  do  an  act  which  others  have  the  power  to  repress. 
Man  assuredly  is  empowered  to  do  an  act  which  others 


29é  LÉON  DUGUIT  [Ch.X 

are  bound  to  respect,  that  is,  an  act  determined  by  an  end 
adequate  to  social  solidarity.     Is  there  here,  however, 
merely  a  question  of  power;  is  it  not  his  duty  to  do  such 
acts?    Has  man  grasped  the  idea  of  a  wider  rule  of  con- 
duct, the  idea  that  each  individual  is  not  only  charged 
with  the  duty  of  respecting  acts  of  solidarity  done  by 
others,  but  also  of  actively  doing  all  he  can  to  develop 
social  solidarity  in  its  two  forms?     Man  assuredly  did 
not  acquire  this  extended  idea  of  social  duty  immediately. 
It  is,  nevertheless,  the  normal  consequence  of  the  pri- 
mary idea  previously  indicated,  and  in  fact  this  obli- 
gation is  the  necessary  complement  of  the  idea  of  social 
duty.     If  man  is  obliged  to  respect  any  act  done  with  a 
purpose  of  solidarity,  if  he  is  obliged  to  do  nothing 
except  with  such  a  purpose,  it  is  evidently  because  he 
is  obliged  to  act  in  conformity  to  social  solidarity.     This 
double  obligation  is  therefore  at  bottom  only  the  ap- 
plication of  a  wider  rule  :    Cooperate  in  the  realization  of 
social    solidarity.     The    development    of    human    con- 
sciousness must  logically  lead  to  this  conception.     The 
content  of  individual  thought  develops  from  the  simple 
to  the  complex,  or  in  other  words,  the  content  of  human 
thought  has  grown  in  the  course  of  ages  by  successive 
additions,    completing   and    enlarging    its    primal    con- 
ceptions.    We  have  followed  the  definition,  the  extension, 
and  the  complication  of  the  sentiment  of  social  solidarity, 
and  in  the  same  way  the  idea  of  the  rule  of  conduct 
which  that  solidarity  imposes  widens,  becomes  defined 
and  complicated.     From  the  time  when  man  was  pro- 
foundly  convinced   that  he  was  both   individual  and 
social,  that  he  could  not  live  without  others  and  that 
others  could  not  live  without   him,  he  perceived   his 
obligation  to  cooperate  in  social  solidarity,  he  under- 
stood that  it  was  not  enough  to  respect  social,  to  refrain 
from  unsocial,  acts,  but  that  he  was  under  a  positive 


§188]  THE  RULE  OF  LAW  295 

obligation  to  do  of  his  own  accord  everything  that  he 
could  which  might  profit  social  solidarity.  The  rule  of 
conduct  then  appeared  to  him  in  all  its  generality  and 
simplicity,  cooperation  in  the  realization  of  social 
solidarity  under  its  two  forms. 

6:  Why  Legal  Prescriptions  Have  Grown  in 
Number.  This  extension  of  the  rule  of  conduct  as 
conceived  by  man  is  incontestable,  and  to  prove  it  stress 
is  rightly  laid  on  the  advancing  increase  in  the  number 
of  legal  rules.^  The  reason  why  the  number  of  legal 
prescriptions  has  increased  with  civilization,  why  in 
our  day  especially  their  mass  swells  in  considerable 
proportion,  is  because  modern  man  understands  more 
clearly  his  duty  of  cooperation.  Belated  representatives 
of  the  orthodox  school  of  political  economy  see  in  this 
a  regrettable  tendency  which  men  at  the  head  of  affairs 
should  make  every  effort  to  stop.  We  see  in  it,  on  the 
contrary,  a  normal  and  inevitable  phenomenon,  the 
necessary  consequence  of  the  conception,  every  day 
becoming  clearer,  of  the  rigorous  obligations  resting  on 
all  the  members  of  a  society.  We  shall  not  press  this 
point  here,  but  will  return  to  it  when  we  show  that  this 
rule  of  conduct,  which  puts  on  men  the  obligation  of 
cooperation  in  the  realization  of  social  solidarity  under 
its  two  forms,  is  precisely  the  rule  of  law  itself,  and  when 
we  study  the  powers  and  duties  of  the  State.*^  We  add 
here  only  that  the  evolution  is  not  yet  perfected,  that 
the  endless  controversies  over  the  juridical  character 
of  this  or  that  rule,  and  especially  over  the  rôle  of  the 
State,  indicate  a  transformation  now  in  progress.  But 
from  day  to  day,  as  the  consciousness  of  social  solidarity 
becomes  clearer,   there   is  a  simultaneous  increase   in 

«  Notably  in  the  case  of  Durkheim,  "Division  du  Travail  Social,  p.  427. 
•  See  §  190  post.       [See  also,  in  the  French  text,  chap,    iv,    §§  3-6, 
here  omitted. —  Transl.] 


296  LÉON  DUGUIT  [  Ch.  X 

the  juridical   obligations   that   seem   to   rest   upon   the 
State  and  the  individual. 

7:  Conclusion.  The  Complete  Rule  of  Con- 
duct. To  sum  up,  the  idea  of  a  rule  of  conduct  is 
essentially  bound  up  with  and  dependent  upon  social 
solidarity;  one  does  not  go  without  the  other  —  they 
are  really  one  and  the  same  thing.  Their  evolution 
has  been  parallel.  The  closer  and  more  complex  the 
bonds  which  unite  a  man  to  his  fellows  appear  to  him, 
the  more  rigorous  and  wider  seems  the  idea  of  social 
duty.  Man  is  solidary  with  other  men;  he  desires 
solidarity  because  he  cannot  be  other  than  solidary, 
and  for  that  very  reason  he  ought  to  desire  solidarity. 
We  do  not  have  to  consider  whether  this  rule  of  conduct 
is  objectively  real;  that  is  properly  a  question  of  meta- 
physics. In  any  case  the  rule  of  conduct  interests 
social  science  only  so  far  as  it  appears  in  the  human 
mind.  It  is  a  social  fact,  and  like  all  social  facts  it 
exists  for  us  only  by  reason  of  the  individual  consciousness 
of  it  :   thus  only  can  we  know  it. 

Finally,  from  the  fact  that  he  is  solidary  with  other 
men,  man  derives  a  rule  of  conduct  which  may  be  summed 
up  as  follows:  Do  nothing  to  diminish  social  solidarity 
by  similitude,  or  social  solidarity  through  division  of  labor. 
Do  everything  materially  practicable  for  the  individual 
to  increase  social  solidarity  in  both  its  forms. 

§  189.  General  Characteristics  of  the  Rule  of  Conduct. 
1  :  A  Rule  Based  on  the  Fact  of  Society.  This 
rule  of  conduct,  born  of  social  solidarity,  may  be  said 
to  be  modeled  on  this  solidarity;  it  appears  with  the 
same  characteristics.  Like  solidarity,  it  includes  the 
whole  man;  like  solidarity,  again,  it  is  at  the  same  time 
individual  and  social. 

The  foundation  of  the  rule  of  conduct  is  social  in  that 
it  exists  because  men  \\\e.  in  society,   otherwise  there 


§189]  THE  RULE  OF  LAW  297 

would  be  no  such  rule.  Man,  however,  can  only  live, 
and  always  has  lived,  in  society,  so  that  this  rule  of 
conduct  has  always  existed,  and  always  will  exist.  It 
is  in  evidence  as  soon  as  there  comes  into  being  a  com- 
bination of  men  and  because  of  that  combination.  It 
is  found  in  all  human  combinations,  in  the  most  primitive 
equally  with  the  most  civilized,  in  the  humblest  as  well 
as  the  most  powerful,  in  the  simplest  just  as  in  the  most 
complex;  it  sways  amorphous  and  organized  societies, 
societies  seemingly  lacking  even  the  embryo  of  a  politi- 
cal organization,  as  well  as  societies  with  highly  de- 
veloped, complicated  political  systems.  From  this  point 
of  view  we  are  in  accord  with  the  pure  sociological 
doctrines  which  look  upon  morals  and  law  as  spon- 
taneous growths,  as  natural  products  of  social  develop- 
ment. We  refuse  to  approve  of  any  assimilation  with 
biology,  but  we  unhesitatingly  admit  that  law  and 
morals  result  naturally  from  social  relations;  we  oppose 
all  doctrines  which  base  law  and  morals  on  the  existence 
of  individual  rights  and  duties  anterior  to  any  society  — 
rights  and  duties  belonging  to  and  resting  upon  man 
because  he  is  man.  The  rule  of  conduct  is  a  social 
product,  or  better,  it  is  society  itself,  in  the  sense  that 
the  existence  of  society  implies  the  existence  of  a  rule 
of  conduct. 

At  the  same  time,  however,  the  rule  of  conduct  is 
individual,  first  because  it  is  and  can  only  be  the  con- 
cept of  an  individual.  Here  we  part  company  with  the 
generally  admitted  doctrines  of  sociology.  The  assumed 
social  consciousness  seems  to  us  pure  hypothesis,  as  we 
believe  we  proved  in  the  last  chapter,  by  showing  that 
the  idea  of  social  solidarity  is  exclusively  individual, 
that  the  development  of  social  solidarity  has  always 
coincided  with  an  extension  of  the  individual  con- 
sciousness, that  the  idea  of  social  relations  is  individual, 


298  LÉON  DUGUIT  [Ch.X 

that  the  content  of  a  consciousness  may  be  social  but 
the  consciousness  itself  is  always  that  of  an  individual. 
The  idea  of  solidarity  contains  the  idea  of  the  rule  of 
conduct;  the  two  ideas  properly  are  one,  therefore 
the  idea  of  the  rule  of  conduct  is  exclusively  individual. 
Let  us  put  aside  all  artificial  hypotheses  of  social  con- 
sciousness; individuals,  m'fembers  of  the  same  social 
organization,  think  and  want  the  same  things,  but  they 
think  and  want  them  as  individuals.  The  rule  of  con- 
duct is  imagined  and  willed  by  the  individual  and  solely 
by  the  individual.  The  national  consciousness  of  the 
German  historical  schooF  is  a  fiction,  like  the  social 
consciousness  of  sociologists.  The  individual  man  im- 
agines and  wills  the  rule  of  conduct  as  he  imagines  and 
wills  social  solidarity,  and  only  in  the  consciousness  of 
the  individual  can  we  see  either  the  rule  of  conduct  or 
social  solidarity. 

In  the  second  place  the  rule  of  conduct  is  individual 
because  it  applies  only  to  individuals.  A  rule  of  con- 
duct can  only  bind  creatures  endowed  with  consciousness 
and  will,  that  is  creatures  able  to  comprehend,  however 
obscurely,  the  motives  of  their  actions.  It  is  of  little 
significance  that  the  creature  who  acts  deceives  himself 
as  to  his  real  motives.  We  are  not  interested  in  what 
end  really  impelled  him  to  act,  but  in  what  end  he  thought 
gave  the  impulse.  Things  happen  just  as  if  the  end 
in  the  individual's  mind  really  caused  the  action.  Nor 
do  we  say  that  the  rule  of  conduct  can  only  apply  to 
free  beings.  Liberty  in  the  metaphysical  sense  is  un- 
demonstrable.  Individual  will,  on  the  contrary,  is 
perfectly  comprehensible.  It  matters  little  whether 
it  be  free  or  foreordained  ;  where  there  is  conscious  action, 

7  See  notably  Savigny,  "Vom  Beruf  unserer  Zeit  fiir  Gesetzgebung  und 
Rechtswissenschaft,"  1st  ed.  1814,  and  "Sj'stem  des  Romischen  Rechts," 
vol.  i.  §§  7ff.;  Puchta,  "Das  Gewohnheitrecht,"  vol.  i  (1826),  ii  (1837); 
cf.  Gény,  "Méthode  d'Interprétation  du  Droit  Privé,"  p.  276  (1899). 


§189]  THE  RULE  OF  LAW  299 

there  is  will.  Will  is  nothing  more  than  the  internal 
conscious  force  which  brings  about  an  external  act, 
a  force  set  in  motion  by  a  particular  end  seized  upon 
by  the  person  entitled  to  this  force.  Consciousness  and 
will  are  enough  to  make  possible  the  application  of  a  rule 
of  conduct,  and  they  are  essential.  Without  them  there 
can  be  a  law  of  causality,  but  no  law  of  purpose.  Every 
rule  of  conduct  is  a  law  of  purpose,  and  it  has  not  yet 
been  scientifically  demonstrated  that  there  are  beings 
other  than  men  who  are  capable  of  voluntary,  conscious 
actions.  Until  this  has  been  proved  we  must  limit  the 
application  of  rules  of  conduct  to  the  individual  man, 
and  to  him  alone.  A  rule  of  conduct  cannot  apply  to  a 
collectivity,  because  there  is  no  proof  that  any  group 
has  consciousness  and  will.  The  objection  will  no 
doubt  be  made  that  then  there  can  be  no  foundation  for 
the  rights  and  obligations  of  the  State,  and  of  the  dif- 
ferent groups  which  grow  up  about  modern  man.  This 
objection  falls  into  a  vicious  circle  because  it  must  first 
of  all  be  proved  that  the  true  conception  of  law  and 
legal  obligation  requires  the  recognition  of  the  person- 
ality of  communities.  We  repeat  that  our  rule  of  con- 
duct can  only  be  applied  to  individuals,  and,  a  point  which 
will  later  be  taken  up,  that  if  it  implies  rights  and  obliga- 
tions, these  rights  and  obligations  can  only  be  those  of 
individuals.  As  Léon  Bourgeois  justly  observes:  "The 
point  is  not  to  define  the  rights  which  society  may  have 
as  against  individuals,  but  the  reciprocal  rights  and 
duties  which  the  fact  of  association  puts  upon  men, 
the  only  real  beings,  the  only  possible  subjects  of  rights 
or  of  duties."^  Let  us  have  done  with  the  discussion 
of  the  rights  and  obligations  of  the  individual,  of  society, 
of  the  State,  and  with  the  opposition  of  the  individual 
and  society.     Society  exists  only  through  the  individual, 

^Bourgeois,  "Solidarité,"  p.  90  (1896). 


300  LÉON  DUGUIT  [Ch.X 

there  is  nothing. but  individuals  Hving  in  society,  there 
are  no  rights  and  obHgations  other  than  those  of  indi- 
viduals living  in  society.^  Socialism  and  individualism, 
in  their  current  meanings,  have  no  value;  every  social- 
istic tendency  is  properly  individualistic,  every  sane 
individualistic  tendency  is  at  the  same  time  socialistic. 

2:  Because  Individual  the  Rule  is  Diversified 
IN  its  Application.  Individual  because  it  is  con- 
ceived by  individual  consciousness  and  because  it  applies 
only  and  can  apply  only  to  individuals,  the  rule  of  con- 
duct is,  by  that  very  circumstance,  diversified.  It  is 
diversified  because  men  are  different,  have  special 
aptitudes,  get  into  varying  situations,  and  should  there- 
fore be  subjected  to  rules  of  conduct  at  once  the  same 
and  different.  The  rule  of  conduct  is  the  same  for  all 
men  because  it  requires  cooperation  in  social  solidarity, 
an  obligation  common  to  all.  Different  men,  however, 
have  different  capabilities,  which  should  be  put  to  the 
service  of  the  social  whole.  Hence  the  rule  of  conduct 
requires  of  all  men  individual  efforts  corresponding  to 
individual  capabilities.  This  diversity  of  the  rule  will 
increase  in  direct  proportion  to  the  increase  in  the 
differentiation  among  men.  The  greater  the  difference 
between  men,  the  greater  the  difference  between  their 
obligations  arising  from  the  rule  of  conduct.  Particu- 
larly in  our  modern  societies,  characterized  by  a  pro- 
found diversity  in  individual  talents,  the  obligations  which 
rest  upon  individuals  are  infinitely  varied.  The  principle 
of  the  obligation  is  the  same  for  all  ;  its  application  differs 
with  each  one.  Cooperation  through  the  division  of 
labor,  an  essential  element  in  modern  social  solidarity,  is 

^  Jellinek  ("Allgemeine  Staatslehre,"  pp.  121ff.,  1900)  is  forced  to 
admit  that  the  personaHty  of  collective  organizations  is  a  pure  legal 
concept,  not  responding  to  any  objective  reality,  "a  form  of  synthesis 
necessary  for  our  consciousness,"  but  that  "always  men  are  necessarily 
the  substratum  of  the  corporation." 


§189]  THE  RULE  OF  LAW  301 

the  employment  of  special  capabilities  in  that  exchange  of 
services  whence  results  such  solidarity.  The  rule  does 
not  require  each  one  to  do  an  equal  share  in  the  divided 
tasks,  but  to  do  a  share  corresponding  to  his  special 
capabilities.  This  shows  the  falsity  of  the  conception 
that  men  are  mathematically  equal.  They  are  equal 
because  they  are  all  under  the  general  obligation  to 
cooperate  in  social  solidarity,  but  the  consequences  of 
this  common  obligation  vary  with  each  person,  because 
no  one  can  so  cooperate  except  under  conditions  peculiar 
to  him  alone. 

True  equality  means  equal  treatment  for  that  which 
is  equal  and  unequal  treatment  for  that  which  is  unequal. 
It  would  be  treating  inequalities  equally  if  the  same 
obligations  were  imposed  on  all,  and  that  would  not  be 
equality.^" 

3:  The  Rule  of  Conduct  Applies  to  Strong 
AND  Weak  Alike.  The  rule  of  conduct  is  individual 
and  diversified,  but  it  is  also  general.  Social  solidarity 
includes  all  the  individuals  in  the  same  collective  group 
without  exception.  The  rule  of  conduct,  consequently, 
is  imposed  upon  all  individuals  without  exception.  It 
does  not  rest  upon  the  collective  group,  a  fictitious  being, 
but  without  distinction  upon  all  individuals  united  by 
the  bond  of  solidarity,  proportionately  to  their  capacity 
to  act.  It  requires  more  of  some,  less  of  others,  but 
something  from  each  one,  because  it  is  social  solidarity 
itself,  and  all  are  bound  by  the  tie  of  solidarity.  From 
this  we  deduce  an  important  consequence.  If  there  are 
in  a  social  group  certain  individuals  stronger  than  the 
rest,  either  because  a  higher  moral  or  religious  force  is 
attributed  to  them  or  because  they  exert  a  material 
power  of  coercion,  or  because  they  are  actually  sup- 
ported by  the  consent  of  a  majority,  such  individuals 

10  PaulLafitte,  "Le  Paradoxe  de  l'Égalité"  (1887). 


302  LÉON  DUGUIT  [Ch.X 

are  subject  to  the  prescriptions  of  the  rule  of  conduct 
just  like  the  others  and  just  as  rigorously.  In  such 
societies,  a  political  authority  is  said  to  exist.  Such 
societies  are  termed  States,  if  this  greater  force  of  certain 
individuals  presents  a  certain  character  of  permanence 
and  of  organization.  The  rule  of  conduct,  nevertheless, 
has  the  same  sway  over  the  powerful,  over  the  rulers, 
as  over  the  weak,  the  ruled.  It  requires  of  them  the 
same  forbearance,  to  do  nothing  which  may  injure 
social  solidarity.  It  prescribes  the  same  duties,  to  do 
everything  in  their  power  to  increase  social  solidarity. 
These  obligations  go  further  even  for  the  strong,  for  the 
rulers,  than  for  the  ruled,  but  not  because  the  obligations 
are  of  a  different  order  or  are  founded  on  a  different 
principle.  They  are  identical  in  nature  and  basis,  they 
differ  in  number  and  range.  The  rulers,  as  they  are 
stronger  than  the  others,  can  work  more  effectively 
toward  the  realization  of  social  solidarity;  by  using  the 
force  which  they  control  they  can  prevent  injury  to 
social  solidarity.  They  should  make  use  of  the  greater 
power  with  which  they  are  intrusted  for  the  ends  of 
social  solidarity,  and  their  power  is  legitimate  when  so 
employed.  Thus  appears  the  principle  of  the  positive 
and  negative  limitation  of  the  State. ^^  We  will  restrict 
ourselves  at  present  to  the  statement  that  this  general 
obligation  puts  on  rulers  a  special  obligation,  that  of 
assuring,  by  the  employment  of  force,  the  attainment  of 
a  result  sought  by  an  individual  will,  every  time  that 
this  individual  will  has  been  determined  by  an  end  in 
conformity  with  the  rule  of  conduct.  And,  if,  as  we 
shall  endeavor  later  to  show,  this  rule  of  conduct  is  the 
rule  of  law  —  objective  law  —  it  will  be  understood  how, 
in  our  opinion,  both  the  negative  and  positive  powers 

"  [The  author  here  refers  the  reader  to  chapter  iv,  not  here  translated. 
—  Transl.] 


§189]  THE  RULE  OF  LAW  303 

and  duties  of  political  authority  are  determined  by  this 
objective  law.  We  do  not  say  with  Jhering  that  law  is 
"the  policy  of  force, "^^  but  that  the  law  imposes  on 
those  holding  power  a  policy  of  force,  that  is,  an  obliga- 
tion to  put  their  power  at  the  service  of  the  rule  of 
law. 

4:  The  Rule  is  Permanent  in  Content,  Chang- 
ing IN  Form.  Finally,  this  rule  of  conduct  is  both 
permanent  and  changing.  Its  base,  which  is  society 
itself,  is  permanent;  it  remains  the  same  in  its  general 
content.  Every  society  is  a  solidarity,  every  rule  of 
conduct  for  men  living  in  society  commands  cooperation 
in  this  solidarity,  all  social  relations  have  always  been 
and  always  will  be  relations  of  similarity  or  of  division 
of  labor,  hence  the  rule  of  conduct  and  its  general  content 
are  permanent.  At  the  same  time,  the  form  which  these 
two  kinds  of  solidarity  assume  and  have  assumed  vary, 
have  varied,  and  will  vary  infinitely.  Human  societies 
are  shown  in  history  in  the  most  diversified  aspects, 
and  these  aspects  will  change  again  indefinitely.  Hordes, 
clans,  segmentary  societies  based  on  clans,  families, 
cities,  nations,  are  so  many  different  social  forms,  and 
the  future  is  certain  to  witness  the  rise  of  others  which  it 
is  impossible  to  foresee.  There  is  no  ideal  social  type 
towards  which  man  is  bound  constantly  to  work.  The 
rule  of  conduct,  as  we  understand  it,  is  no  absolute  prin- 
ciple which  every  human  effort  should  continually  tend 
to  realize.  No  one  knows,  no  one  can  know,  this  social 
ideal;  it  would  be  the  social  absolute,  which  perhaps 
exists,  but  which  no  one  knows  or  will  ever  know.  When 
we  speak  of  progress,  we  do  not  mean  that  such  or  such 
a  society  is  nearer  such  an  ideal  but  simply  that  it  is  more 
highly  differentiated,  more  solidary,  and  that  its  members 
believe  that  they  suffer  less  than  before.  The  content 
"  See  p.  245  ante. 


304  LÉON  DUGUIT  [Ch.X 

of  the  objective  rule  is  a  factual  content  constantly  in 
course  of  transformation  and  varying  with  time  and 
country.  Here  solidarity  through  similitudes  dominates, 
there  solidarity  through  division  of  labor.  These  social 
elements  themselves  vary  under  the  influence  of  the 
most  diverse  factors,  with  the  character  of  different 
collective  groups,  nomadic,  pastoral,  agricultural,  mili- 
tary, industrial.  The  rôle  of  the  historian  and  of  the 
sociologist  is  evidently  to  determine  the  successive 
phases  of  this  evolution  ;  to  state  the  content  of  the  rule 
of  conduct  in  a  given  period  by  observation  of  the  social 
facts  of  that  period,  and  not  to  compare  the  different 
social  forms  with  a  postulated  social  ideal.  Thus,  while 
we  admit  the  existence  of  a  rule  of  conduct  with  a  per- 
manent base,  we  do  not  agree  with  the  doctrines  of 
natural  law  according  to  which  this  rule  of  conduct  is 
absolute  and  unchangeable,  sometimes  misunderstood 
and  obscured,  but  always  in  existence  as  a  social  ideal 
towards  which  all  human  societies  should  strive,  and  as  a 
standard  to  measure  the  level  of  their  civilization.  At  the 
same  time  we  believe  that  we  escape  our  own  criticism 
of  contemporary  sociology,  that  it  cannot  establish  a 
fixed  principle  for  human  conduct.  Our  principle  is  un- 
doubtedly positive,  no  other  could  be  scientifically  for- 
mulated; but  it  will  endure  unmodified  as  long  as  men 
exist,  for  it  is  drawn  from  man  himself,  in  his  double 
nature  which  is  both  social  and  individual. 

5:  The  Rule  of  Conduct  Identified  with  Soli- 
darity. There  exists  then,  a  rule  of  conduct,  based  on 
social  solidarity,  of  which  man  becomes  conscious  at  the 
time  when  he  becomes  conscious  of  his  solidarity  with 
other  men.  The  two  ideas  are  really  one,  their  evolution 
is  identical.  This  rule  is  social  in  foundation,  individual 
in  application  and  in  concept,  diversified  because  it  is 
individual;  general  because  it  is  social,  permanent  in 


§189]  THE  RULE  OF  LAW  305 

principle,    infinitely   changing   in    application.     Is   this 
rule  of  conduct  a  rule  of  law? 

§  190.  The  Rule  of  Conduct  is  the  Rule  of  Law;  it  is 
Objective  Laiv.  1  :  The  Distinction  between  Law 
AND  Morals.  The  rule  of  conduct,  thus  understood,  is 
a  rule  of  law  and  not  a  moral  rule,  though  that  question 
really  seems  to  us  quite  uninteresting,  and  the  endless 
controversies  which  for  centuries  have  been  waged  over 
the  boundary  between  morals  and  law  seem  vain.  If 
there  be  found,  through  the  observation  of  facts,  a 
principle  of  conduct  sufficiently  general  to  be  imposed 
on  all,  sufficiently  fixed  to  apply  in  any  society,  suffi- 
ciently supple  to  bend  to  all  the  needs  of  a  period,  to  all 
the  requirements  of  a  people,  what  matters  it  whether 
this  principle  be  termed  moral  or  legal?  If,  beginning 
with  the  single  incontestable  reality,  the  individual  ego, 
it  be  established  that  the  individual  is  subordinated  to 
a  rule  which  imposes  forbearance  and  obligation  towards 
others,  what  matters  it  whether  that  rule  be  one  of  morals 
or  of  law?  What  matter  whether  it  be  moral  or  legal, 
if  all  are  subject  to  it,  if  it  knows  neither  superior  nor 
inferior,  if  it  applies  to  all  and  no  one  has  edicted  it,  if 
it  is  imposed  on  all  and  no  one  has  created  it?  There  is 
no  logical  difference  between  morals  and  law;  there  can 
only  be  a  difference  of  fact  in  a  never  ending  process  of 
evolution.  If  all  men  were  clearly  and  fully  conscious 
of  the  two  essential  elements  of  social  solidarity,  simiU- 
tudes  and  division  of  labor,  if  all  men  understood  dis- 
tinctly that  their  lives  depend  on  their  cooperation  in 
this  double  solidarity,  no  one  would  think  of  a  difference 
between  law  and  morals;  for  all  men  the  rule  of  morals 
would  be  merged  into  one  of  law.  In  the  general  evo- 
lution of  humanity,  there  are,  however,  always  certain 
men  more  enlightened  than  the  rest,  with  a  better,  more 
precise    idea    of    social    solidarity,    who    consequently 


306  LÉON  DUGUIT  [Ch.X 

understand  as  obligatory  certain  rules  of  conduct  which 
the  great  mass  does  not  so  consider.  These  rules,  not 
yet  so  well  understood  by  all  that  their  observance  ap- 
pears essential  to  social  solidarity,  are  those  which  we 
call  moral.  The  term  "rules  of  law"  is  given  to  impera- 
tives which  seem  to  the  mass  of  men  essential  conditions 
of  the  maintenance  and  development  of  solidarity. 
Both  legal  and  moral  rules  are,  however,  of  the  same 
character,  both  are  based  on  the  same  principle,  the 
concept  of  both  has  the  same  content;  it  is  only  that 
the  rules  called  moral  are  known  less  fully  and  by  fewer 
individuals  than  those  termed  rules  of  law.  This  ex- 
plains how  it  happens  that  with  the  progress  of  civil- 
ization the  domain  of  morals  daily  loses  ground  to  that 
of  law.  The  rule  of  conduct,  becoming  a  rule  of  law, 
does  not  change  its  character,  it  remains  just  what  it 
was  ;  it  becomes  a  rule  of  law  simply  because  it  is  under- 
stood more  clearly  by  more  individuals. 

2:  Solidarity  Neither  Egoistic  nor  Altruistic. 
Morality  is  not,  as  some  sociologists  teach,  the  recon- 
ciliation of  the  two  contrary  sentiments,  altruism  and 
egoism,  which  control  man.  Moral  progress  is  not 
the  triumph  of  altruism  over  egoism.  The  human 
mind  exhibits  no  such  duality.  The  idea  which,  through 
intellectual  progress,  penetrates  deeper  into  the  con- 
sciousness of  men,  is  that  of  social  solidarity,  which  is 
at  once  altruistic  and  egoistic,  or  more  exactly  is  neither 
one  nor  the  other.  When  man  realizes  that  he  is  solidary 
he  realizes  that  in  violating  the  rule  of  conduct  in  regard 
to  one  person,  he  violates  it  in  regard  to  all,  including 
himself — that  in  cooperating  in  the  work  of  solidarity 
he  is  working  for  all  and  for  himself,  and  that  every 
injustice  done  to  another  is  an  injustice  affecting  the  whole 
of  which  he  is  a  part.  Imbued  with  these  ideas,  man  is 
neither  altruist  nor  egoist,  he  is  himself,  he  is  man.     What 


§190]  THE  RULE  OF  LAW  307 

is  called  egoism  is  merely  ignorance  of,  or  an  imperfect 
conception  of,  social  solidarity.  Man  rebels  against 
the  rule  of  conduct  because  he  has  not  a  sufficiently 
definite  understanding  of  the  solidarity  which  unites 
him  with  others.  He  doubtless  violates  rules  of  con- 
duct through  egoism,  but  egoism  is  a  motive  of  action 
which  rests  on  ignorance  of  social  solidarity.  Here  we 
touch  the  difference  between  egoism  and  individualism. 
Individualism,  as  a  spring  of  action,  is  based  on  the  clear 
conception  by  individuals  of  social  solidarity;  egoism 
rests  on  an  individual  consciousness  which  understands 
social  solidarity  either  imperfectly  or  not  at  all.  That 
is  why  the  ancients  said,  so  justly,  that  knowledge  is  a 
virtue.  It  is  a  virtue  since  it  is  a  prerequisite  of  justice, 
which  includes  all  virtues.  So  Aristotle  and  Plato 
rightly  looked  on  the  art  of  education  as  the  essential 
part  of  the  art  of  politics. 

3:  The  Rule  is  one  of  Law,  rather  than  of 
Morals,  because  it  has  its  Basis  in  Social  rather 
THAN  Intrinsic  Values  of  Conduct.  It  must, 
nevertheless,  be  recognized  that  according  to  generally 
admitted  ideas,  a  very  clear  distinction  is  drawn  between 
law  and  morals,  a  distinction  which  is  considered  to  be 
essential.  Admitting  this  distinction,  would  the  rule 
which  we  have  formulated  be  a  rule  of  morals  and  not 
of  law?  We  do  not  think  so.  To  establish  a  specific 
difference  between  law  and  morals,  it  must  be  admitted 
that  ethics  may  establish  a  principle  according  to  which 
the  worth  of  an  act  taken  by  itself  may  be  estimated. 
Either  words  have  no  meaning,  or  that  is  ethics.  What- 
ever that  principle  may  be,  it  will  be  ethical  only  if  it 
is  a  criterion  which  permits  us  to  measure  an  act  and  to 
know  whether  that  act  is  good  in  itself.  Now  the  rule 
whose  foundation  and  formula  we  have  established  is 
not  such  a  criterion.     We  do  not  say  that  man  should 


308  LÉON  DUGUIT  [Ch.X 

cooperate  in  social  solidarity  because  such  cooperation 
is  good  in  itself;  but  man  should  cooperate  in  social 
solidarity  because  he  is  man,  and  as  such  can  exist  only 
through  social  solidarity.  This  cooperation  does  not 
appear  to  us  a  duty,  but  a  fact,  which,  as  conceived  by 
man,  operates  as  a  spring  of  action  in  consequence  of 
his  constant  aspiration  towards  life- — that  is,  towards 
diminution  of  suffering.  We  do  not  say  that  every  act 
of  social  solidarity  is  good  in  itself.  The  question  is 
not  whether  it  is  good  or  bad  —  if  it  were,  positive 
science  could  not  answer  it.  We  say  that  every  act  of 
cooperation,  or  more  accurately,  every  act  emanating 
from  an  indivudal  will,  inspired  by  a  purpose  of  coopera- 
tion in  solidarity,  has  a  value,  which  we  may  qualify 
as  social,  and  this  act  claims  the  respect  of  all.  Our 
rule,  then,  does  not  yield  a  criterion  by  which  the  in- 
trinsic value  of  an  act  may  be  estimated,  but  a  criterion 
for  the  determination  of  the  social  value  of  an  act. 
That  is  where  the  difference  lies,  if  there  be  a  difference 
between  law  and  morals.  Our  rule  is,  therefore,  a  rule 
of  law,  because  it  simply  determines  the  social  value 
of  every  act  emanating  from  an  individual  will.^^  This 
brings  out,  besides,  the  difference  between  our  idea  of 
solidarity  and  the  conceptions  of  charity  and  fraternity. 
Be  charitable,  be  fraternal,  it  is  said,  because  it  is  right 
to  be  so.  We  say,  on  the  contrary,  you  are  solidary 
because  you  are  in  fact  both  individualized  and  socialized, 
and  if  you  perform  an  act  of  solidarity,  others  are  subor- 
dinated to  it  because  it  is  at  the  same  time  individual  and 
social.  The  precepts  of  charity  and  fraternity  are  ethical 
precepts.  The  rule  based  on  the  idea  of  solidarity  is  not 
a  rule  of  morals,  it  can  only  be  a  rule  of  law. 

§  191.     The  Doctrine  of  Jhering  and  Jellinek,  and  its 
Refutation.     1  :  Unsound  German  Theories  of  Law. 

"  See  in  addition  the  two  following  paragraphs. 


§191]  THE  RULE  OF  LAW  309 

Nevertheless  we  should  not  pass  over  in  silence  the 
purely  legal  doctrines  which  have  so  great  a  vogue 
to-day,  and  which  differ  so  much  from  our  own  in  their 
consequences.  We  have  not  in  mind  the  now  dis- 
credited doctrines  of  the  law  of  nature  which,  based 
on  subjective  rights  recognized  in  the  individual,  differ 
completely  from  the  ideas  here  developed.  We  see 
in  the  law  only  a  rule  of  social  conduct,  and  the  subjective 
rights  of  man,  if  he  has  any,  arise  from  this  rule  of  con- 
duct. The  doctrines  of  natural  law,  on  the  other  hand, 
make  the  legal  rule  flow  from  subjective  rights  which 
are  claimed  for  man  as  man.  French  legal  science  is 
being  freed  with  difficulty  from  these  artificial  theories, 
but  some  of  its  representatives  appear  to  be  adopting 
the  legal  doctrines  at  present  defended  in  Germany 
by  writers  of  great  authority. 

The  contemporary  German  theory  has  disdainfully 
rejected  the  systems  of  natural  law.  It  starts  out  with 
objective  law,  that  is,  the  rule  imposing  itself  as  such  and 
determinative  of  the  social  value  of  an  act  ;  it  accepts  this 
rule  with  the  various  characteristics  which  we  have 
observed  in  it,  but  holds  that  in  itself  it  would  not  be 
a  rule  of  law,  —  it  would  be  a  moral,  economic,  or  political 
rule,  but  would  not  be  objective  law.  It  would  become 
a  rule  of  law  only  when  accompanied  with  the  sanction 
of  material  coercion.  The  rule  of  law  has  doubtless 
a  social  basis,  but  a  social  rule  would  become  a  rule 
of  law  only  when  sanctioned  by  organized  coercion. 
According  to  this  conception,  there  can  only  be  a  rule 
of  law,  an  objective  law,  in  a  society,  when  there  is  an 
authority  invested  with  ■  material  force,  which  either 
expressly  formulates  or  impliedly  recognizes  this  rule, 
and  assures  respect  to  it  by  coercion.  In  other  words, 
there  is  a  rule  of  law  only  where  there  is  a  State,  that  is, 
a  society  with  an  organized  political  power,  able  to  com- 


310  LÉON  DUGUIT  [Ch.X 

pel  obedience.  Objective  law  is  a  social  rule  willed  by 
the  State  with  the  sanction  of  material  coercion.  Only 
on  this  condition  is  there  a  rule  of  law;  law  is  exclusively 
derived  from  the  State,  it  is  a  creation  of  the  State. 

All  these  doctrines  originate  with  Hegel  and  Jhering. 
They  inspire  the  accepted  representatives  of  the  German 
school  of  public  law,  Laband  and  Jellinek;  they  have  a 
certain  influence  on  the  young  French  school.  They 
lead  directly  to  the  impossibility  of  limiting  by  law  the 
powers  of  the  State,  of  explaining  the  character  of  certain 
written  laws,  those  organizing  the  State  for  instance, 
and  of  finding  the  basis  for  the  obligatory  character  of 
State  contracts.  It  is  important  that,  without  going 
into  detail,  we  establish  the  falsity  of  these  theories. 

2:  Jhering's  Doctrine  Summarized.  Leaving 
Hegel  aside,  we  must  seek  the  principle  of  all  these 
doctrines  in  Jhering's  famous  book,  "Der  Zweck  im 
Recht."^*  Let  us  summarize  as  briefly  as  possible  the 
views  of  the  celebrated  professor.  Society,  he  says, 
is  reducible  to  this  formula:  each  for  all  and  all  for 
each.  What  guaranty,  however,  has  society  that  each 
will  do  his  part  in  obedience  to  the  fundamental  rule 
"you  exist  for  me"?  There  are  two  guaranties,  the 
two  factors  of  social  life,  payment  or  wages,  and  co- 
ercion. The  social  organization  of  reward  forms  re- 
lations between  individuals  and  is  particularly  clearly 
expressed  in  contracts  and  associations.  The  social 
organization  of  coercion  brings  forth  the  State  and  the 
law.  Coercion,  in  the  widest  sense,  means  the  accom- 
plishment of  an  object  through  the  interference  of  a 
foreign  will.  The  idea  of  coercion  presupposes  an  active 
and  a  passive  subject  of  will,  a  person  who  wants  to  do 
something  and  who  wishes  to  make  another  consent  to  his 

"  [See  especially  chaps,  i  and  viii  of  the  volume  translated  in  this 
Series  (vol.  i,  chaps,  i  and  viii  of  the  German  edition).  —  Ed.] 


§191}  THE  RULE  OF  LAW  311 

doing  it.  A  foreign  will  may  interfere  in  two  ways,  (1) 
mechanically,  by  physical  coercion,  the  opposition  being 
broken  down  by  a  stronger  physical  force,  a  process 
purely  physical,  of  the  same  kind  as  when  a  man  rolls  an 
obstacle  from  his  path,  (2)  by  psychological  coercion, 
when  the  opposing  will  is  vanquished  in  itself  by  an  idea, 
as  for  example  by  the  fear  of  some  danger  or  suffering. 
The  sum  of  the  manifestations  of  coercion,  and  of  the 
rules  relating  thereto,  forms  what  is  called  the  system  of 
social  coercion.  This  system  contains  two  functions, 
one  external,  one  internal.  The  external  function  im- 
plies an  apparatus  of  external  coercion,  which  is  the 
State.  The  State  is  society  itself,  so  far  as  society 
contains  the  power  of  organized  coercion.  The  internal 
function  is  the  establishment  of  rules  relating  to  the 
exercise  of  the  power  of  coercion.  The  totality  of  such 
rules  forms  the  law.  Law  is  the  system  of  social  ends 
assured  by  coercion.  Says  Jhering:  "It  is  without  doubt 
a  great  advance  of  modern  philosophy  of  law,  as  distin- 
guished from  the  earlier  law  of  nature,  that  it  has  recog- 
nized and  forcibly  emphasized  the  dependence  of  law 
upon  the  State.  But  it  goes  too  far  when,  as  Hegel 
in  particular  does,  it  denies  the  scientific  interest  of  the 
conditions  before  the  State  came  into  existence."  ^^  So 
the  State  is  a  natural,  spontaneous  formation;  it  is 
society  self-organized  into  a  society  armed  with  the 
power  of  coercion,  in  order  to  accomplish  the  purpose 
for  which  it  exists  by  the  use  of  coercion.  The  State 
is  society  so  far  as  society  has  the  power  of  regulated 
and  disciplined  coercion.  Law  is  the  totality  of  rules 
by  which  the  State  regulates  coercion,  and  it  becomes, 
little  by  little,  the  political  system  of  coercion.  The 
essential   character  of   the  State   is   the   possession  of 

»5  "Law  as  a  Means  to  an  End,"  p.  178  ("Der  Zweck  im  Recht"  (1877), 
vol.  i,  p.  241). 


312  LEON  DUGUIT  [Ch.X 

material  power,  superior  in  a  given  territory  to  any  other 
power,  either  of  individuals  or  of  groups;  the  State  has 
a  monopoly  of  the  power  of  coercion.  The  essential 
character  of  law  is  that  it  is  the  sum  of  rules  of  coercion 
applied  within  a  State.  This  definition  contains  two 
elements,  the  rule  —  the  norm  —  and  the  realization  of 
this  rule  by  coercion.  Rules  of  law  alone  are  those  es- 
tablished by  society  with  State  coercion  behind  them, 
hence  it  is  said  that  the  State  is  the  sole  source  of  law. 

3:  How  Jhering  Subjects  the  State  to  its  Own 
Law.  But,  continues  Jhering,  men  did  not  stop  there, 
and  they  have  come  to  see  in  law  a  rule,  a  general  com- 
mand, binding  not  only  those  to  whom  it  is  addressed, 
but  also  him  who  formulates  it.  Law  continues  to  be 
solely  the  rule  established  by  the  State  under  the  sanction 
of  coercion;  but  this  rule,  as  finally  conceived,  is  con- 
sidered as  bilaterally  obligatory,  both  for  the  individuals 
to  whom  it  is  addressed  and  for  the  State  which  edicted 
it.  How  may  this  condition  be  conciliated  with  the  idea 
that  law  emanates  from  the  State,  that  there  is  no  law 
except  by  the  will  of  the  State?  This  bilaterally  obli- 
gatory force  of  the  law  results  from  the  self-limitation 
of  the  State.  Of  course,  an  individual  or  general  rule 
obligatory  only  for  him  to  whom  it  is  addressed  is  a  law, 
if  the  law  be  simply  looked  on  as  a  set  of  rules  imposed  by 
coercion;  but  this  is  not  enough  if  it  be  considered  what 
the  law  may  and  should  be,  what  it  in  fact  is  to-day, — 
order  assured  in  civil  society,  the  triumph  of  social  over 
individual  interests.  There  will  be  law  in  this  last 
sense,  there  will  be  a  law  State  ("Rechtsstaat"),  only 
when  State  power  itself  is  bound  by  the  rule  of  law. 
Then  only  does  the  law  appear  as  legitimate,  then  only 
is  there  a  legal  order  ("Rechtsordnung"),  then  only  is 
there  a  justice.  Law,  in  the  full  meaning  of  the  word, 
is  accordingly  the   bilaterally   obligatory   force  of  the 


§191]  THE  RULE  OF  LAW  313 

State's  mandate,  the  subordination  of  the  State  itself  to 
its  own  decrees.  Then  only  do  law  and  coercion  cease 
to  be  arbitrary  to  become  legitimate,  to  become  justice. 

But  how,  says  Jhering,  can  State  power  be  itself 
subordinated,  since  the  State  is  defined  as  subject  to 
no  superior  power?  How  comes  State  power  to  limit 
and  restrict  itself?  Simply  in  its  own  selfish  interest. 
The  power  of  the  State  accepts  the  law  as  thus  under- 
stood and  supports  it,  conceived  as  a  rule  compulsory 
on  all  including  itself,  because  it  is  convinced  that  such 
is  its  own  interest,  because  it  understands  that  it  can 
enjoy  real  security  and  uncontested  authority  only  if 
it  obeys  its  own  commands.  Thus  law  is  a  well  con- 
sidered political  system  of  force ^ — -not  one  of  passion 
and  of  temporary  interest,  but  one  of  wide  and  far 
reaching  views. 

4  :  Jellinek  Says  that  the  State  Limits  its  Own 
Action  by  the  Law  that  it  Creates.  Jhering  had 
a  considerable  influence  on  contemporary  German 
doctrine  with  respect  to  public  law.  We  leave  to  one 
side  the  theories  of  Seydel,^*^  Sarwey,^^  and  Zorn,^^  who 
see  in  the  rule  of  law  nothing  but  an  arbitrary  creation 
of  the  State  ;  Zorn  goes  so  far  as  to  consider  every  decision 
of  the  State  a  law.  These  authors  do  not  even  admit 
the  self-limitation  of  the  State.  Jellinek,  however, 
whose  authority  is  great  both  in  Germany  and  in  France, 
is  directly  inspired  by  Jhering.  The  State,  says  he, 
synthetizes  all  social  ends;  law  is  one  of  these  ends, 
and  the  State  consequently  absorbs  and  creates  law. 
The  peculiar  characteristic  of  the  State  is  self-deter- 
mination, the  faculty,  peculiar  to  the  State,  of  determin- 
ing itself,   by  itself  and   by  its  own  will.     "Both  as 

i«  "Grundziige  einer  Allgemeinen  Staatslehre"  (1873),  pp.  24,  31,  32. 
"  "Das  offentliche  Recht  und  die  Verwaltungspflege"  (1880),  p.  12. 
18  "Reichsstaatsrecht"  (1895-7),  vol.  i,  p.  108,  vol.  ii,  p.  333. 


314  LÉON  DUGUIT  [Ch.X 

regards  whatis  internai  and  what  is  external,  the  sovereign 
State  has  the  exclusive  power  of  self-determination 
('Selbstbestimmung')."  "But,"  adds  Jellinek,  "just 
as  the  State  possesses  the  faculty  of  self-determination, 
it  possesses  that  of  self-limitation  ('Selbstbeschrank- 
ung')  ;  so,  as  it  recognizes  other  persons  beside  and 
below  it,  it  creates  a  law  for  itself  both  as  to  interior  and 
as  to  exterior  affairs.  Its  own  rights  are  limited  by 
rights  which  it  recognizes  in  others.  .  .  .  Through 
self-limitation  the  State  thus  gives  to  its  own  will  a 
concrete  content  which  binds  that  will.  ...  It 
separates  its  own  domain  from  that  of  private  action, 
subjects  itself  in  many  cases  to  private  law,  recognizes 
the  personality  of  foreign  States  and  binds  its  own  will 
by  entry  into  the  international  system.  By  virtue  of 
self-limitation  the  State  changes  from  physical  to  moral 
force,  its  will  rises  from  an  unlimited  power  to  a  power 
legally  limited  in  regard  to  other  personalities."  ^^ 
A  law,  then,  is  a  jural  rule  formulated  by  the  State, 
extending  or  diminishing  the  juridical  sphere  of  a  per- 
sonality; it  is  a  rule  of  law  because  it  emanates  from 
the  will  of  the  State.  And  if  it  nevertheless  binds  even 
the  State,  it  is  because  the  State  wants  itself  limited 
by  the  rule  of  law,  by  virtue  of  its  faculty  of  self-limita- 
tion. After  the  publication  of  Jellinek's  book  "Staaten- 
verbindungen,"  the  objection  was  raised  that  if  the 
State  is  bound  by  law  only  by  virtue  of  its  own  will  to 
be  so  bound,  there  is  no  true  legal  relation  between  the 
State  and  some  personality,  that  there  is  private  law 
but  no  public  law.  The  learned  professor  limits  his 
answer  to  the  observation:  "The  opponents  of  my 
theory  have  assuredly  not  noticed  that,  to  establish 

1»  "Gesetz  und  Verordnung"  (1887),  pp.  197-8.  Cf.  Jellinek,  "Die 
rechtliche  Natur  der  Staatenvertrage,  "  pp.  14ff.,  and  "Staatenverbin- 
dungen,"  p.  34. 


§191]  THE  RULE  OF  LAW  315 

the  basis  of  public  law,  I  have  transferred  by  analogy 

to  the  State  the  principles  of   modern  ethics,  that   is, 

moral  autonomy  ;  consequently  by  the  negation  of  these 

principles  they  not  only  overturn  public  law,  but  ethics 

as  well,  and  they  end  in  a  nihilism  which  makes  any 

science  of  the  collective  life  of  men  impossible."  ^^     Here 

Jellinek  contradicts  himself,  for  he  repeatedly  afhrms, 

in  his  book  "Gesetz  und  Verordnung,"  that  law  is  wholly 

distinct  from  ethics.^^ 

Thus,  in  this  conception,  there  is  no  law  except  through 

the  State,  there  is  no  rule  of  law  except  by  the  will  of  the 

State;    and  if  a  rule  of  law  binds  the  State,  from  whose 

will  it  emanates,  it  is  as  a  result  of  its  voluntary  self- 
limitation.22 

5:  Laband  Supports  the  Same  Doctrine,  The 
doctrine  of  Laband,  though  less  clearly  set  forth,  appears 
to  be  identical  with  that  of  Jellinek.  A  general  rule, 
conceived  from  the  observation  of  social  facts,  may  be 
a  rule  of  ethics,  of  politics,  or  of  economics;  it  becomes 
a  rule  of  law  only  when  the  State,  in  formulating  it,  gives 
it  the  character  of  an  order  imposing  itself  on  individuals 
with  an  indirect  or  a  direct  sanction. ^^     Laband  seems 

'0  "Gesetz  und  Verordnung,"  p.  199,  note  11.  The  opponents  whom 
Jellinek  has  especially  in  view  are:  Rosin,  "Souveranitat,  Staatgemeinde, 
Selbstverwaltung,"  in  Hirth's  Annalen  des  Deutschen  Reichs,  1883,  p.  321; 
Briet,  "Zur  Lehre  von  den  Staatenverbindungen,"  in  Griinhut's  Zeit- 
schrift  fiir  das  Privât-  und  Oeffentliche  Recht  der  Gegenwart,  vol.  xi,  p. 
97;  Gierke,  in  Schmoller's  "Jahrbiicher  fur  Gesetzgebung,"  vol.  vii,  new 
series,  p.  1173. 

"  See  notably  his  expressions  in  "Gesetz  und  Verordnung,"  p.  192. 

«  Besides  the  passages  cited  in  preceding  notes,  Jellinek,  "Gesetz  und 
Verordnung,"  p.  191,  writes:  "Only  the  State  has  unconditioned  power. 
It  alone  may  command,  and  all  power  in  the  State  can  only  come  from 
the  State.  The  power  of  a  subordinate  of  the  State  is  only  a  'Wollen- 
diirfen'  (permission  to  will),  that  of  the  State  is  a  Wollenkonnen  (power 
to  will).  All  juridical  power  of  a  subject  of  the  State  is  conditioned 
by  the  State  and  is  distinguished  thereby  from  the  power  of  the  State 
itself." 

""Das  Staatsrecht  des  Deutschen  Reichs,"  vol.  1,  p.  430,  note  1; 
pp.  488  and  643  (3d  ed.  1895). 


316  LÉON  DUGUIT  [Ch.X 

to  admit  the  theory  of  self-limitation,  however,  when 
he  writes:  "In  the  modern  civilized  State,  the  imperium 
is  not  arbitrary,  it  is  a  power  determined  by  rules  of 
law  ;  the  mark  of  a  State  governed  by  law  ('Rechtsstaat') 
is  that  it  cannot  require  its  subjects  to  do  or  to  refrain 
from  doing  anything,  that  it  cannot  command  or  prohibit, 
without  the  basis  of  a  rule  of  law.  These  rules  of  law 
may  have  their  basis  in  customary  law;  in  modern 
legally  organized  States  they  are  habitually  sanctioned 
by  written  law.  The  body  of  written  laws  limits  the 
power  of  the  State.  They  prescribe  the  juridical  limits 
of  the  action  available  to  the  State  on  the  persons  and 
property  of  its  subjects,  and  therefore  ûx  at  the  same 
time  the  sphere  in  which  they  are  juridically  pro- 
tected."24 

The  rôle  assigned  by  Laband  to  custom,  and  perhaps 
exaggerated,  in  a  certain  sense,  by  the  historical  school, 
is  to-day  completely  denied  by  certain  authors.  Cus- 
tom, according  to  them,  can  be  no  more  than  a  fact, 
suggesting  such  or  such  a  rule  to  the  mind  of  the  legis- 
lator, but  a  rule  of  law  can  spring  only  from  the  action 
of  a  will  which  has  the  power  to  cr<;ate  law;  this  can 
only  be  the  will  of  the  State,  which  alone  can  transfer 
a  rule  from  the  domain  of  morals  to  that  of  law.^^ 

6:  The  Error  of  these  Theories  in  Laying  too 
Great  Stress  on  Organized  Sanction.  According 
to  these  different  theories,  no  rule  is  a  rule  of  law  unless 
it  derives  its  obligatory  character  from  an  order  of  the 
State.  In  spite  of  that  their  proponents  try,  with  little 
success,  to  explain  how  the  State  is  limited  by  the  law. 

"  Id.  vol.  i.  pp.  653-4. 

*^Bergbohm,  "Jurisprudenz  und  Rechtsphilosophie"  (1892),  vol.  i, 
pp.  480ff.  Cf.  Zitelmann,  "Gewohnheitsrecht  und  Irrthum,"  in  Archiv 
fur  die  civil.  Praxis,  vol.  Ixvi,  p.  323,  1883;  Knitschky,  "Gewohnheits- 
recht und  Gerichtsgebrauch,"  in  Archiv  fiir  offenlliches  Recht,  vol.  xiii, 
pp.  161ff.,  1898;  and  in  particular  Gény,  "Méthode  d'Interprétation" 
(1899)  p.  276,  and  the  entire  bibliography  given  by  the  author. 


§191]  THE  RULE  OF  LAW  317 

If  they  were  right,  our  rule  of  conduct  based  on  the 
consciousness  of  social  solidarity  might  be  a  concept 
of  ethics,  of  politics,  or  of  economics,  but  it  would  not 
be  a  rule  of  law.  The  theories  of  Jellinek  and  of  Laband 
result  in  contradictory  consequences,  and  like  the  doc- 
trine of  natural  rights,  point  to  the  recognition  a  priori 
that  the  individual  has  a  certain  juridical  sphere,  that 
is  to  say  a  body  of  subjective  rights.  That  is  not,  how- 
ever, the  question  now  before  us.  Is  the  rule  of  conduct 
implied  from  the  consciousness  of  social  solidarity  in 
itself  a  rule  of  law,  before  the  State  has  proclaimed  it 
and  made  it  obligatory?  We  do  not  hesitate  to  answer, 
yes.  Even  admitting  for  a  moment,  with  Jhering  and 
Jellinek,  that  the  rule  of  law  cannot  be  conceived  other- 
wise than  as  accompanied  by  social  coercion,  must  we 
conclude  that  it  cannot  exist  till  after  the  organization 
of  this  social  coercion?  Organization  will  give  the 
coercion  greater  force,  but  will  not  create  it;  it  will 
strengthen  the  rule  of  law,  it  will  even  assure  a  definite 
respect  for  it.  But  it  will  not  create  this  rule  of  law, 
which  existed  not  only  before  the  organization  of  the 
coercion  which  is  its  sanction,  but  even  before  men  were 
conscious  of  the  coercion,  from  the  simple  fact  that  men 
live  in  society.  In  spite  of  the  difference  previously 
brought  out  between  the  physical  and  the  social  worlds, 
it  may  well  be  said  that  just  as  physical  laws  existed 
before  they  were  formulated  by  science,  so  the  rule  of 
law  existed  before  men  were  conscious  of  it.  This,  it  is 
true,  is  more  theoretical  than  practical,  and  is  foreign 
to  the  realistic  method,  so  we  do  not  insist  on  it.  In 
fact,  man  has  always  been  more  or  less  clearly  conscious 
of  a  rule  for  his  action,  based  on  his  relations  with  other 
men.  This  rule  of  conduct,  more  or  less  clearly  con- 
ceived by  different  people,  in  different  periods  and  places, 
is  a  rule  of  law,  even  before  its  sanction  is  organized  by 


318  LÉON  DUGUIT  [Ch.X 

society.     Just  because  it  is  a  result  of  social  solidarity, 
it  bears  within  itself  a  social  sanction. 

7  :  The  Rule  has  the  Sanction  of  Psychological 
Coercion.     This  social   rule,  we   repeat,  contains   its 
sanction  within  itself.     Even  if  there  is  no  organized 
means  of  physical  coercion,  it  is,  by  virtue  of  its  own 
nature,  sanctioned  by  a  psychological  coercion  sufficient, 
according  to  Jhering's  own  definition,   to  give  it  the 
character  of  a  rule  of  law.     Let  us  make  our  meaning 
clear.     The  sanction  of  a  rule  by  coercion  can  only 
come  into  play  after  the  person  subject  to  this  rule  has 
done  something  of  his  own  individual  will.     If  we  imagine 
persons  in  a  state  of  complete  repose,  it  is  impossible 
to  percei\'e  any  mode  of  sanction  whatever.     To  see 
what  is  the  positive  sanction  of  a  rule,  we  must  imagine 
that  an  individual  subject  to  the  rule  has  done  some- 
thing in  conformity  with  or  contrary  to  the  rule,  or 
wants  something  which  the  rule  either  permits,  requires, 
or  forbids  him  to  want.     Now,  given  the  rule  of  conduct 
such  as  we  conceive  it,  a  rule  social  in  its  foundation, 
an  act  done  conformably  to  the  rule  will  necessarily 
produce  a  social  effect,  an  effect  of  solidarity,  because 
this  act,  conforming  to  the  rule  of  conduct,  must  be  an 
act  of  cooperation  in  social  solidarity.     It  will  therefore 
naturally  be  satisfactory  to  the  mass  of  individuals  who 
are  conscious  of  the  social  bond,  since  the  consciousness 
of  the  social  bond   is  the  consciousness  of  solidarity 
itself.     This  is  the  natural  consequence  of  the  identity 
which  we  have  tried  to  prove  between  the  two  ideas  of 
rule  of  conduct  and  social  solidarity;  they  are  really 
only  one   conception.     In   conceiving  and   in  desiring 
social  solidarity,  men  conceive  and  desire  the  rule  of 
conduct  which  is  its  consequence,  and  also  respect  for 
every  action  which  conforms  to  such  solidarity  and  to 
such  a  rule;  therefore  the  rule  has  a  sanction,  a  social 


§1911  THE  RULE  OF  LAW  319 

sanction,  it  is  consequently  a  rule  of  law.^^  If  we  now 
suppose  an  individual  to  act  contrary  to  the  rule  of  con- 
duct, his  action  will  do  violence  to  social  solidarity  and 
it  will  be  so  understood  by  the  individuals  who  are 
conscious  of  social  solidarity,  and  in  consequence  will 
provoke  a  reaction  from  the  mass  of  such  individuals. 
Every  action  contrary  to  the  rule  of  conduct  is  an  injury 
to  social  solidarity;  it  is,  consequently,  conceived  neces- 
sarily as  anti-social.  There  must  be,  then,  either  social 
recognition  for  an  individual  action  which  conforms 
both  to  social  solidarity  and  to  the  rule  of  conduct,  or 
social  reprobation  for  an  action  opposed  to  solidarity 
and  to  the  rule  of  conduct.  This  consciousness  of  the 
recognition  or  reprobation  of  an  action  may  be  more  or 
less  obscure,  according  to  epoch,  country,  or  state  of 
mind,  but  it  is  always  there,  just  because  the  concept  of 
the  social  bond  exists.  The  idea  of  solidarity  contains 
in  itself  the  ideas  of  the  rule  of  conduct  and  of  its  social 
sanction. 

8  :  The  Rule  of  Law  is  Antecedent  to  the  Idea 
OF  the  State,  According  to  Jhering  himself,  a  rule 
may  be  considered  as  a  rule  of  law  if  it  has  the  sanction 
of  psychological  coercion.^^  Is  not  the  consciousness  of 
the  social  recognition  or  reprobation  of  an  act,  according 
to  whether  it  conforms  or  is  contrary  to  the  rule  born 
of  solidarity,  just  this  psychological  sanction?  This 
sanction  exists  always  and  in  every  society,  even  in  those 
having,  by  hypothesis,  no  conscious  organized  force,  even 
in  those  in  which  there  is  no  political  power  formulating 

*•  [It  is  here  evident  that  Duguit  considers  social  sanction  an  essential 
element  of  the  "règle  de  droit";  consequently  the  English  equivalent 
for  the  term  he  uses  is  "rule  of  law"  as  distinguished  from  "rule  of  right." 
For  by  "droit"  he  thus  means  positive  law,  using  the  word  "positive" 
in  the  broadest  sense.  —  Ed.] 

"  Jhering  in  "Law  as  a  Means  to  an  End"  (p.  283)  refers  to  the  feeling 
of  right  ("Rechtsgefiihl")  as  a  guaranty  of  law.  Is  this  not  psychological 
coercion? 


320  LÉON  DUGUIT  [Ch.X 

rules  of  conduct,  and  enforcing  them  by  physical  or 
psychological  coercion,  even  in  societies  which  have  not 
yet  developed  into  States.  Are  there  any  such  societies? 
Reasoning  leads  us  to  admit  that  there  are.  Sociologists 
of  the  highest  authority  cite  examples  of  societies  without 
a  trace  of  political  differentiation,^»  in  which  men  are 
conscious  of  a  rule  of  conduct.  Why  is  not  this  a  rule 
of  law?  Besides,  what  does  it  matter  whether  there  are 
or  are  not  societies  not  yet  developed  into  States?  We 
think  that  we  have  proved  the  essential  point,  that  the 
concept  of  a  rule  of  law,  understood  as  a  social  rule  in- 
vested with  a  social  sanction,  is  completely  independent 
of  the  idea  of  the  State,  that  this  conception  antecedes 
and  is  above  and  more  comprehensive  than  the  idea 
of  the  State.  We  have  not  yet  treated  of  the  State, 
and  through  simple  observation  of  the  general  structure 
of  societies,  of  the  conception  which  men  have  formed  of 
them,  we  have  reached  the  idea  of  a  rule  of  conduct, 
social  in  foundation  and  in  sanction,  which  cannot  be 
other  than  the  rule  of  law. 

Let  us  go  further.  Even  in  societies  with  an  organized 
political  power,  even  in  societies  which  have  reached  a 
high  degree  of  civilization,  are  there  not  many  rules  of 
conduct,  understood  and  accepted  by  the  general  mass 
of  individuals,  which  are  social  in  origin  and  which  find 
their  sanction  solely  in  the  social  reaction  provoked  by 
their  violation  and  in  the  social  recognition  which  ac- 
companies their  application?  These  rules  have,  never- 
theless, not  yet  been  adopted  by  the  State  [étatisées], 

«8  "Concerning  the  members  of  the  small,  unsettled  groups  of  Fue- 
gians,  Cook  remarks  that  none  was  more  respected  than  another.  The 
Veddahs,  the  Andamanese,  the  Australians,  the  Tasmanians,  may  also 
be  instanced  as  loose  assemblages  which  present  no  permanent  un- 
likenesses  of  social  position.  .  .  .  And  in  such  wandering  hordes  as  the 
Coroados  of  South  America.  .  .  .  the  distinctions  of  parts  are  but 
nominal."  Herbert  Spencer,  "Principles  of  Sociology"  (2d  éd.),  pt.  v, 
vol.  ii,   §454,  p.  288. 


§191]  THE  RULE  OF  LAW  321 

they  have  not  yet  been  formulated  by  the  political 
power,  which  does  not  yet  recognize  their  application 
or  repress  their  violation.  For  example,  the  rule  nowa- 
days almost  unanimously  admitted  which  imposes  on 
the  State  the  duty  of  poor  relief  —  can  it  be  said  that 
this  rule  has  become  a  rule  of  law  only  by  the  effect 
of  statutes  which  in  most  countries  have  stated  it  in- 
completely and  applied  it  imperfectly,  that  it  is  only  a 
rule  of  law  so  far  as  it  is  thus  stated  and  applied  and 
for  the  rest  is  only  moral  or  political?  We  believe  that 
there  is  no  rule  of  government  which  is  not  a  rule  of  law, 
and  that  an  act  which  is  not  legal  cannot  be  an  act  of 
government.  It  is  high  time  to  have  done  with  this 
separation  of  law  and  politics  which  has  been  too  long 
invoked  to  cover  every  kind  of  tyranny.  Government  is 
a  branch  of  the  art  of  law,  it  is  not  distinct  from  law,  it 
is  nothing  if  it  is  not  the  art  of  adapting  a  rule  of  law  to 
facts  and  to  men.  Why  should  the  rule  which  puts  on 
the  State  the  duty  of  succor,  apart  from  the  applications 
made  of  it  by  certain  statutes,  be  merely  a  moral  rule? 
An  ethical  conception  can  be  only  the  notion  of  a  rule 
imposing  itself  because  the  object  of  this  rule  is  good  in 
itself,  whatever  idea  be  formed  of  the  good  in  itself. 
The  rules  to  which  we  refer,  in  particular  that  which 
imposes  on  the  State  the  duty  of  succor,  are  obligatory 
for  men  only  because  they  live  in  society  and  because 
societies  have  at  a  given  epoch  certain  needs.  Precisely 
for  that  reason  they  are  rules  of  law,  and  we  cannot 
understand  how,  if  they  are  not,  they  can  become  so 
because  it  pleases  certain  individuals,  stronger  than  the 
others,  to  give  them  that  character;  they  will  then 
become  State  rules  of  law,  but  they  were  and  they  remain 
rules  of  law. 

9:  Many    Rules   Adopted    by   the  State   have 
Only  a  Psychological  Sanction.    There  are  a  large 


322  LÉON  DUGUIT  [Ch.X 

number  of  rules  of  the  State,  that  is,  rules  sanctioned 
at  least  implicitly  by  positive  written  laws,  which  are 
really  only  sanctioned  by  psychological  coercion.  Speak- 
ing accurately,  this  is  notably  true  of  all  penal  statutes. 
It  cannot  be  denied  that  in  the  actual  state  of  our  civil- 
ization, the  rules  "Thou  shalt  not  kill,"  "Thou  shalt  not 
steal,"  are  rules  of  law.  At  bottom  are  these  rules 
sanctioned  by  direct,  material  means  of  coercion?  The 
State  makes  material  arrangements  to  prevent  and 
repress  such  acts  as  far  as  possible,  takes  police  measures, 
preventive  and  repressive,  to  stop  the  repetition  of  such 
acts  by  means  of  an  exemplary  punishment.  The  coer- 
cive sanction  of  the  rule,  however,  is  really  the  fear 
inspired  by  the  penalty  with  which  the  criminal  law 
threatens  those  who  violate  it.  In  a  word  the  sanction 
of  criminal  law  is  essentially  psychological  coercion. 
Further,  it  has  been  maintained  and  with  reason  that 
the  rules  "Thou  shalt  not  steal,"  "Thou  shalt  not  kill," 
like  every  rule  containing  a  prohibition,  are  not  even 
implicitly  formulated  by  the  legislator,  that  he  merely 
formulates  an  order  to  the  rulers  or  to  their  agents  to 
intervene  when  such  an  act  has  been  done.^^  If  this 
were  so,  the  rules  which  forbid  murder,  theft,  swindling, 
etc.,  would  not  be  expressed  in  any  positive  statute, 
would  not  be  invested  with  any  direct  sanction  by  the 
State.  They  are,  nevertheless,  unanimously  admitted 
to  be  rules  of  law.  This  Laband  recognizes.  "The 
rule  'Thou  shalt  not  steal'  is,"  says  he,  "a  rule  of  law, 
because  it  coincides  with  the  statutes  against  theft." 
It  is  true  that  he  adds:  "The  rules  'Thou  shalt  not  lie,' 
'Thou  shalt  not  enrich  thyself  at  the  expense  of  another,' 
are  certainly  principles  on  which  are  based  a  number  of 

'''Binding,  "Die  Normen  und  ihre  Ubertretung,"  vol.  i,  pp.  8,  66ff. 
Cf.  Binding,  "Grundriss  des  gemeinen  Strafrechts,"  vol.  i,  p.  58  (5th 
ed.  1895). 


§191]  THE  RULE  OF  LAW  323 

prescriptions  of  criminal  and  private  law,  but  they  are 
not  in  themselves  rules  of  law.  They  become  such 
only  when  combined  with  other  elements  of  fact,  in  which 
case  a  quality  of  legal  efficacy  has  been  conferred  upon 
them."^°  Is  the  distinction  exact  which  the  learned 
author  makes  between  the  rules  "Thou  shalt  not  steal" 
and  "Thou  shalt  not  enrich  thyself  at  the  expense  of 
another?"  This  we  question.  The  only  difference  is 
that  in  current  language  the  word  "theft"  implies  the 
idea  of  an  intent  to  injure,  that  the  positive  repression 
of  theft  may  be  more  rigorous  than  that  of  unjust  en- 
richment ;  but  the  violation  of  these  two  rules  is  an  injury 
to  social  solidarity  as  conceived  in  our  day,  and  if  one  is 
an  "autonomous"  rule  of  law,  we  do  not  see  why  the 
other  should  not  be. 

10:  Finally  Our  Theory  Permits  Limitation  of 
THE  Powers  of  the  State.  Two  considerations, 
finally,  seem  to  us  to  prove,  contrary  to  the  doctrine 
which  we  reject,  that  the  idea  of  a  rule  of  conduct  which 
we  have  tried  to  make  clear  is  truly  the  idea  of  a  rule  of 
law. 

As  has  been  already  said,^^  the  only  value  of  the  idea 
of  law  is  that  it  makes  it  possible  to  limit  positively  and 
negatively  the  powers  of  the  governing  or  of  the  State, 
to  detennine  what  the  State  is  obliged  to  do  and  what  it 
cannot  do.  To  have  understood  this  is  the  great  merit 
of  the  doctrine  of  individualism,  but  that  doctrine  is 
based  on  an  hypothesis;  it  is  contrary  to  reality,  it 
cannot  serve  to  establish  the  original  natural  indepen- 
dence of  man  and  the  existence  of  subjective  rights 
founded  on  the  autonomy  of  the  human  being.  Again, 
it  makes  it  possible  to  determine  negatively  the  scope  of 

^'Laband,  "Staatsrecht  des  deutschen  Reiches,"  vol.  i,  p.  430,  note  1 
(3d  ed.  1895). 
«  §§179ff.  ante. 


324  LÉON  DUGUIT  [Ch.x 

State  action,  but  not  to  define  the  positive  duties  of  the 
governmental  power.  It  is  artificial  and  insufficient. 
Our  idea  of  the  rule  of  law,  on  the  contrary,  lays  a  solid 
foundation  for  both  the  negative  and  the  positive  obli- 
gations of  the  State.  Our  rule  is  imposed  by  its  own 
force  on  the  State  just  as  it  is  imposed  on  all  individuals; 
the  State  declares  it,  organizes  a  practical  sanction  for 
it  but  does  not  create  it,  and  is  bound  by  it.  B}^  the 
doctrine  of  Jhering  and  Jellinek  the  State  cannot  logi- 
cally be  bound  by  the  rule  of  law  which  it  has  itself 
created.  Nevertheless  these  authors  well  understood 
that  such  a  consequence  would  be  possible  only  if  the 
State  appeared  to  the  human  consciousness,  if  not  a 
priori  at  least  as  a  natural  result  of  the  evolution  of  ideas, 
as  both  negatively  and  positively  limited  by  the  rule  of 
law.  They  then  took  refuge  in  the  self-limitation  of  the 
State.  Jellinek  does  not  try  to  explain  this  self-limi- 
tation; Jhering  claims  that  the  possessor  of  power  has 
been  led  to  self-limitation  by  a  wise  comprehension  of 
his  own  interest,  a  rather  hypothetical  explanation,  and 
a  fragile  guaranty  against  the  arbitrary  exercise  of 
power  by  the  State.  A  limitation  that  is  willed  is  not 
a  limitation  for  him  who  wills  it,  and  if  one  admits  only 
this  limitation  it  is  equivalent  to  going  so  far  as  to  say 
that  the  power  of  the  State  is  unlimited,  and  to  proceed- 
ing logically  to  the  extreme  conclusions  of  Seydel,^^ 
Sarwey,^^  and  Zorn.^^  The  State,  they  say,  limits  and 
binds  itself  by  statute,  which  creates  law,  and  so  long  as 

"  "Grundziige  einer  allgemeinen  Staatslehre,"  p.  14  (1873),  and  "Bay- 
erisches  Staatsrecht,"  vol.  i,  p.  26  (1894—5). 

S3  "Das  offentliche  Recht  und  die  Vervvaltungspflege,"  p.  12  (1880): 
"The  capital  error  of  the  school  attached  to  the  Kantian  conception  of  the 
State  lies  in  their  attempt  to  build  the  State  on  the  idea  of  Law.  On 
the  contrary,  the  idea  of  Law  can  only  be  built  up  from  the  State."  Cf. 
Sarwey,  "Das  Staatsrecht  des  Kônigreiches  Wurtemberg,"  vol.  i,  p.  37, 
vol.  ii,  p.  92  (1883). 

34  "Reichesstaatsrecht,"  vol.  i,  p.  108,  vol.  ii,  p.  333  (1895-7). 


§191]  THE  RULE  OF  LAW  325 

the  statute  exists  the  State  is  bound  by  the  statute,  that 
is  by  the  law.  But  legislating  is  only  a  mode  of  State 
action,  and  if  the  State  is  limited  by  law,  as  we  firmly 
believe,  it  is  limited  in  all  its  modes  of  action,  even  the 
legislative.  The  State  cannot  do  everything,  even  by 
statute,^^  but  if  it  were  bound  only  by  the  statutes 
which  it  has  enacted,  which  it  was  free  not  to  enact  and 
which  it  can  abolish  by  other  statutes,  it  is  not  correct 
to  say  that  it  is  bound  by  law. 

11:  The  German  Doctrine  which  Denies  that 
Constitutions  are  Laws.  Under  the  doctrine  of 
Jhering  and  Jellinek,  and  the  large  number  of  jurists 
who  follow  them,  it  is  impossible  to  recognize  the  charac- 
ter of  rules  of  law  even  in  statutes  which  apply  only  to 
the  State,  which  regulate,  and  whose  action  is  limited 
to,  the  internal  organization  of  the  State,  the  "State 
apparatus"  to  which  they  restrict  their  action,  to  adopt 
Laband's  expression.  The  organic  provisions  in  con- 
stitutions cannot  be  rules  of  law,  because  they  cannot 
possibly  be  commands.  Indeed ,  if  the  State  alone  creates 
law  by  formulating  an  order  accompanied  by  a  coercive 
sanction,  it  cannot  address  such  an  order  to  itself.  An 
order  implies  two  subjects,  one  who  commands  and 
another  to  whom  the  command  is  addressed;  but  under 
the  prevailing  doctrine  of  the  personality  of  the  State, 
the  State  as  a  person,  creating  the  law  by  its  own  orders, 
cannot  at  the  same  time  both  command  and  be  com- 
manded. Hence  constitutional  and  organic  laws,  which 
are  addressed  solely  to  the  State,  cannot  be  laws,  since 
they  cannot  contain  a  rule  imposed  by  a  superior  on  an 
inferior.  This  Laband  would  seem  to  admit  when  he 
writes:   "The  dispositions  which  are  restricted  to  the 

S6  The  authors  of  the  French  Constitution  of  1791  well  understood  this. 
They  included  the  phrase  "The  legislative  power  cannot  make  any  law 
which"  .   .   .     Title  I,  section  3. 


326  LÉON  DUGUIT  [Ch.X 

organs  of  the  State,  without  any  reaction  on  individuals, 
are  not  laws"^^;  so  those  dispositions  which  in  every 
country  are  pecuHarly  looked  upon  as  laws,  as  the 
"supremae  leges,"  would  not  be  laws  in  the  material 
sense.  A  doctrine  which  logically  leads  to  such  con- 
sequences is  self -condemned.  It  must  be  admitted,  then, 
that  the  State  as  legislator  does  not  create  the  law,  it 
formulates  a  preexisting  rule;  and  this  rule  is  from  hence 
forth  a  rule  of  law,  inasmuch  as  a  simple  statement  of  the 
rule  could  not  give  it  a  character  it  did  not  previously 
possess.  The  rule  based  on  the  concept  of  social  soli- 
darity then  is  truly  the  rule  of  law. 

12:  Jellinek's  Views  in  his  "Allgemeine  Staats- 
LEHRE."  This  chapter  had  been  composed  when 
Jellinek's  new  book,  "Allgemeine  Staatslehre,"  ap- 
peared. The  general  theory  of  law  and  of  the  State 
which  is  there  set  forth  remains  at  bottom  and  in  general 
the  same  as  it  was  in  his  other  works.  Nevertheless, 
the  learned  professor  seems  to  us  to  have  given,  not  per- 
haps without  inconsistency,  more  prominence  to  the 
spontaneous  formation  of  law  and  its  independence  in 
regard  to  the  State.  So  some  of  our  prior  criticisms  of 
Jellinek's  theory  as  it  appeared  from  "Gesetz  und  Verord- 
nung"  and  "System  der  subjectiven  Rechte"  do  not 
apply  to  that  set  forth  in  "Allgemeine  Staatslehre." 
We  can  now  even  invoke  the  great  authority  of  Jellinek 
in  support  of  our  conclusions  on  certain  points. 

The  learned  professor  declares  at  the  outset,  and  he  is 
right,  that  positive  science  cannot  determine  the  tran- 
scendental value  of  human  institutions  in  general  and  of 
law  in  particular.  He  adds  that  law  must  be  considered 
as  a  psychological  phenomenon,  contained  in  the  in- 
dividual, that  law  thus  understood  makes  up  a  part  of 
human  representations,  that  it  exists  in  our  minds,  and 

••  "Das  Staatsrecht  des  deutschen  Reiches,"  vol.  i,  p.  649  (3d  ed.  1895). 


§191]  THE  RULE  OF  LAW  327 

that  the  precise  determination  of  the  law  consists  in 
"fixing  what  part  of  the  content  of  our  consciousness 
should  be  designated  as  law."  It  is,  however,  beyond 
question  that  the  law  consists  in  a  body  of  rules  for 
human  action.  The  prescriptions  of  religion,  of  morals, 
of  custom,  have  the  same  character,  so  how  are  we  to 
distinguish  the  peculiar  qualities  of  juridical  rules? 
They  present  three  essentials:  (1)  they  are  rules  for 
the  exterior  conduct  of  men  towards  one  another,  (2) 
they  are  rules  emanating  from  a  recognized  external 
authority,  (3)  they  are  rules  whose  binding  force  is 
guaranteed  by  an  external  power.  By  these  three 
characteristics,  legal  norms  are  distinguishable  from 
religious  or  moral  norms,  which  lack  one  or  the  other." 
13:  Points  of  Jellinek's  Doctrine  Here  Ac- 
cepted. But,  and  it  is  particularly  here  that  we  find, 
in  "AUgemeine  Staatslehre,"  arguments  favoring  our 
doctrine,  Jellinek  declares  that  a  rule  may  be  one  of  law 
even  if  it  is  not  accompanied  by  a  direct,  material,  organ- 
ized coercion.  Doubtless,  he  says,  the  necessary  mark  of 
law  is  its  force  of  application  ("Giiltigkeit")  ;  a  rule  does 
not  form  part  of  the  legal  order  unless  it  is  compulsory; 
a  law  which  is  no  longer  or  has  not  yet  become  com- 
pulsory is  not  a  law  in  the  true  sense  of  the  word.  It 
is,  however,  incorrect  to  consider  coercion,  properly 
so-called,  as  the  sole  guaranty  and  therefore  the  essential 
mark  of  law.  Most  frequently  what  is  termed  coercion 
acts  only  as  a  compulsive  force,  that  is,  as  a  determining 
motive,  for  example  through  the  fear  which  it  inspires; 
and  in  a  general  way,  the  guaranty  which  assures  the 
obligatory  force  of  a  rule  and  gives  it  a  legal  character 
consists  in  this,  "that  the  motivating  force  of  its  pre- 
scriptions is  fortified  by  a  social,  psychological  force, 
of  such  a  nature  that  it  is  legitimate  to  expect  that  the 
»?  "AUgemeine  Staatslehre,"  pp.  302-3  (1900). 


328  LÉON  DUGUIT  [Ch.X 

rule  may  be  in  a  position  to  impose  itself  as  a  principle 
of  action  in  opposition  to  contrary  individual  motives. "^^ 
History,  too,  shows  the  existence  of  social  forces,  distinct 
from  the  State,  without  whose  aid  the  State  is  powerless 
to  impose  a  rule;  and  all  one  part  of  modern  public 
law,  and  the  whole  of  international  law,  have  not  the 
sanction  of  direct  coercion.  "It  is,  then,  not  coercion, 
but  guaranty,''^  concludes  Jellinek,  "of  which  coercion  is 
only  one  method,  which  is  the  essential  mark  of  the  idea 
of  law.  The  rules  of  law  are  not  so  much  rules  of  coercion 
as  guaranteed  norms."  ^® 

We  said  no  more  than  this,  and  we  tried  to  show  that 
the  rule  of  conduct  based  on  social  solidarity  is  a  true 
rule  of  law,  because  it  finds  in  the  consciousness  of  social 
solidarity  that  psycho-social  guaranty  of  which  Jellinek 
speaks,  and  because  the  evolution  of  objective  law  follows 
the  evolution  of  social  solidarity.  The  learned  Heidel- 
berg professor  seems  to  admit,  with  us,  the  spontaneous 
formation  of  law.  Two  elements,  in  his  estimation, 
concur  in  this  formation,  one  conservative,  one  pro- 
gressive. The  former  is  the  tendency,  innate  in  man, 
to  consider  existing  facts  as  normative,  that  is  as  the 
applications  of  a  rule,  and  to  formulate  a  rule  obtained 
from  such  facts.  The  progressive  element  is  the  con- 
stant aspiration  towards  a  law  superior  to  the  existing 
law,  "and  it  is  an  historical  fact  that  as  soon  as  man 
began  to  think  about  law,  a  conviction  appeared  in 
his  mind  of  the  existence  of  a  natural  law,  whose  validity 
should  not  be  derived  from  its  establishment  by  man 
but  from  its  innate  superiority."  That  is  not  law,  but 
it  is  an  essential  element  in  its  formation,  which  is  what 
the  dogmatic  critics  of  the  systems  of  natural  law  have 
not  understood. ^'^ 

">  Id.  p.  304. 
"  Id.  p.  306 


"  Id.  p.  306. 

"  Id.  pp.  307ff.,  especially  p.  323. 


§191]  THE  RULE  OF  LAW  329 

14:  Jellinek,  however,  Regards  the  Law  as 
Willed  by  the  State.  On  all  these  points  we  accept 
Jellinek's  doctrine,  and  his  developments,  though  some- 
times obscure,  are  singularly  suggestive;  but  can  the 
spontaneous  formation  of  law,  as  the  learned  author 
appears  to  understand  it,  be  reconciled  with  the  idea  of 
the  State  considered  as  a  commanding  sovereign  power? 
It  does  not  seem  so  to  us.  It  is  certainly,  in  the  view  of 
Jellinek,  an  incontestable  fact  that  the  State  has  the 
essential  character  of  a  sovereign,  a  commanding  power, 
"  'Herrschen'  (to  command  as  sovereign)  is,"  says  he,  "the 
criterion  which  distinguishes  the  power  of  the  State  from 
every  other  power.  .  .  .  The  power  of  'Herrschen'  is  a 
power  which  cannot  be  contradicted.  'Herrschen'  is  to 
command  without  condition,  and  to  be  able  to  compel 
perfect  obedience.  A  subordinate  may  escape  any  power, 
he  cannot  escape  that  of  the  'Herrscher.'  "^^  The  State  is 
truly,  according  to  the  author,  a  community  endowed  with 
the  sovereign  power  of  command,  thus  understood;  and 
under  this  condition,  what  is  the  rôle  of  the  State  in  the 
formation  of  law?  Jellinek  declares  that  the  question 
has  been  badly  put  and  therefore  rendered  obscure. 
If,  says  he,  by  "State"  is  meant  the  political  community 
of  modern  times,  law  certainly  existed  before  the  State 
came  into  being;  but  if  the  State  be  conceived  from  the 
dynamic  point  of  view,  and  be  defined  as  a  community 
invested  with  the  greatest  power  known  to  the  particular 
epoch,  the  answer  is  wholly  different.  Law  is  exclusively 
a  social  function,  and  consequently  is  born  of  the  State, 
which,  in  its  widest  sense,  is  no  other  than  an  organized 
lay  community,  not  subject  to  any  other  community. 
Nevertheless,  in  the  development  of  law  and  of  the  State, 
law  has  not  remained  exclusively  an  affair  of  the  State. 
Law  has  been  created  in  collective  groups  distinct  from 
"  Id.  p.  388.     Cf.  especially  p.  442. 


330  LÉON  DUGUIT  [Ch.X 

the  State,  in  families,  in  ethnie  groups,  in  diverse  com- 
munities.    There  has  been,   however,   a   tendency   for 
the  State  to  draw  to  itself  all  the  instrumentalities  of 
force  possessed  by  subordinate  communities,  and  when 
this  process  was  completed  the  State  at  last  became 
alone  invested  with  the  power  of  command.     "Thus," 
says  Jellinek,  "not  the  whole  formation  of  law,  but  the 
protection  of  legally  established  rules  of  law,  becomes 
the  business  of  the  State.     The  judiciary  power  passes 
wholly  into  its  hands,  and  jurisdiction  over  all  matters  is 
subordinate  to  or  granted  by  the  State.      Hence   the 
State  finally  has  the  right  to  regulate  all  law  applying 
within  its  boundaries,  so  that,  in  a  modern  State,  all 
law  becomes  law  created  and  permitted  by  the  State."  *^ 
15  :  The  Error  of  Treating  the  Law  as  Created 
Exclusively  by  the  State.     By  a  learned  detour, 
Jellinek  arrives  in  the  end  at  the  same  conclusion  as  in 
his  preceding  works:  law  is  to-day  a  creation  exclusively 
and   consciously  willed   by    the  State.     Doubtless  he 
does  not  see  in  this  result  a  theoretical  principle,  but 
only  the  outcome  of  an  historical  process.     It  matters 
little,  the  proposition  remains  the  same,  and  our  prior 
criticisms  seem  to  us  to  hold  true  as  regards  it.     If  the 
modern  State  creates  all  law,  it  creates  its  own  law; 
consequently,  its  action  will  be  limited,  its  obligations 
determined,  only  by  a  self-imposed  law,  by   the  self- 
livntation  which  appears  in  full  force  in  the  "Allgemeine 
Staatslehre."     "On  this  self-limitation,"  says  Jellinek, 
"depends  the  whole  of  public  law,  and   therefore   the 
whole  of  the  law."     "When  the  State  acts  by  fixed 
rules  which  can  only  be  established  and  changed  by 
means  of  juridical  forms,  these  rules  contain  in  them- 
selves the  subordination  of  State  organs  to  them.     Thus 
the  activity  of  the  State  itself  is  subordinate,  since  the 

«Î  Id.  p.  330. 


§191]  THE  RULE  OF  LAW  331 

activity  of  the  organ  is  the  activity  of  the  State  itself.  .  .  . 
There  is,  then,  concealed  in  every  rule  of  law  the  guar- 
anty, given  to  the  persons  subject  to  the  law,  that  it  is 
obligatory  on  the  State  itself  as  long  as  it  is  in  force. 
This  order  to  its  organs  to  respect  the  rules  of  law  is  not 
simply  a  free  act  on  the  part  of  the  State,  .  .  .  but  is  also 
the  accomplishment  of  a  duty.  The  State  binds  itself 
towards  its  subjects  in  the  act  of  creating  law,  whatever 
the  law  may  be,  to  maintain  and  to  carry  out  that  law."  ^ 
16:  Jellinek's  Explanation  of  Self-Limitation 
BY  Historical  Evolution.  Jellinek  also  explains  this 
subordination  of  the  State  to  its  own  law  by  an  his- 
torical evolution,  but  the  proposition  seems  to  us  just 
as  self-contradictory.  Taking  the  psycho-sociological 
point  of  view,  which  is  that  of  the  author,  how  can  the 
idea  of  self-limitation  of  the  State  be  reconciled,  even 
historically,  with  the  idea  that  the  State  exclusively 
creates  the  law?  The  conception  of  the  subordination 
of  the  State  to  law  seems  to  us  necessarily  to  imply  the 
conception  of  a  rule  of  law  anterior  and  superior  to  the 
State,  which,  besides,  the  learned  author  appears  to 
admit.  "Unquestionably  at  first  every  act  emanating 
from  the  sovereign  power  was  considered  as  by  nature 
conformable  to  the  law  and  never  by  any  possibility 
the  antithesis  of  law  [non-droit].  .  .  .  But  in  a  high 
degree  of  legal  development  even  the  activity  of  the 
State  as  lawmaker  can  be  juridically  limited.  The  act 
of  creating  law,  even  when  the  result  is  and  remains 
legally  in  existence,  may  contain  in  itself  a  violation  of 
law.  For  a  long  time  there  has  been,  and  there  is  cer- 
tainly to-day,  in  the  law  of  civilized  peoples,  a  base 
which  is  not  subject  to  the  arbitrary  legislative  will. 
This  results  from  the  historical  development  of  a  people, 
.  .  .  and    consequently,    if   one   abandons   the    purely 

«  Id.  pp.  332,  434. 


332  LÉON  DUGUIT  [Ch.X 

formal-juridical  point  of  view,  variable  and  constant 
elements  may  be  distinguished  in  all  law.  But  these 
constants  are  recognized  as  possessing  this  character 
with  reference  to  the  whole  state  of  a  people,  either  tacitly 
or  expressly,  and  by  virtue  of  that  fact  they  form  a 
juridical  standard  by  which  to  measure  acts  of  the  State 
will,  even  though  such  acts  may  be  formally  unassailable. 
Therefore  a  statute  or  a  judicial  decision,  from  which 
there  is  no  appeal,  may  be  considered  as  lawless  [non- 
droit]  and  not  simply  as  unjust."  ^ 

17:  The  Dilemma   of   Jellinek's   Theory.     As- 
suredly, and  our  book  has  no   purpose  other  than  to 
establish  that  proposition  ;  but  in  spite  of  every  effort  we 
cannot  understand  how  Jellinek  can  reconcile  it  with  the 
rest  of  his  theory.     The  dilemma  seems  to  remain  just 
as  it  was.     If  the  State  is  not  that  commanding  sover- 
eign power  which  creates  law  by  its  own  will,  if  the  State 
only  declares  and  guarantees  rules  of  law  anterior  and 
superior  to  it,  we  then  understand  perfectly  that  the 
State  cannot  do  everything,  even  legislatively,  and  that 
statutes  emanating  from  the  so-called  sovereign  power 
are  sometimes  the  antithesis  of  law.     But  if,  on  the 
contrary,  the  State  is,  as  Jellinek  affirms,  a  sovereign 
community,  whose  unlimited  will  creates  law  in  modern 
societies,  we  cannot  see  any  juridical  limit  to  its  creative 
action,  and  we  cannot  understand  how  a  statute,  an  act 
of  the  sovereign,  can  sometimes  be  a  violation  of  law. 
However  that  may  be,  this  new  book  of   the  learned 
professor  contains  a  remarkable  effort  to  establish  a 
juridical  limitation  of  the  State,  an  effort  which  will 
undoubtedly  have  a  happy  influence  both  on  the  theories 
of  jurists  and  on  the  policy  of  governments. 

§  192.     The  Doctrine  of  Gierke  and  Preiiss.     1  :  The 
Theory  of  Gierke.    We  cannot  neglect  other  doc- 

*«  Id.  pp.  331-7. 


§192)  THE  RULE  OF  LAW  333 

trines  whose  influence  in  Germany  balances  those  of 
Jhering  and  JeUinek;  we  refer  to  the  theories  of  Gierke 
and  of  the  numerous  jurists  who  follow  him,  especially 
Hoenel  and  Preuss.^^  Their  doctrines  offer  an  improve- 
ment on  those  which  we  have  been  discussing  in  that  they 
do  not  derive  law  solely  from  the  will  of  the  State,  and 
have  tried  really  to  limit  the  State  by  the  law.  In  many 
respects  their  conclusions  agree  with  our  own,  but  our 
disagreement  on  certain  points  is  hopeless.  Their  doc- 
trines have  the  fault  of  frequently  depending  on  a 
priori  affirmations,  not  on  proofs;  and  their  credit  is 
due  more  to  the  authority  of  their  propounder  than  to 
the  evidence  in  their  favor. 

2:  The  Need  for  Exterior  Limitation  of  Men's 
Wills,  i.e.,  Law.  According  to  Gierke,^^  the  essence 
of  law  consists  in  its  affirmation  and  limitation  by  an 
exterior  sovereign  will  in  the  interior  of  human  society. 
As  soon  as  a  number  of  wills  show  a  tendency  towards 
realization,  a  legal  order  is  necessary.  There  is  cer- 
tainly another  social  function  which  rules  the  will  and 
forbids  incorrect  action  —  morals;  but  morals  rules  the 
will  internally  alone,  and  life  in  society  is  impossible 
without  a  rule  limiting  competing  wills  externally.  This 
limiting  rule  is  the  law.  After  its  appearance,  law  mani- 
fests itself  objectively  as  a  body  of  rules,  subjectively 
as  a  body  of  powers  ("Befugnisse")  and  obligations. 
As  a  rule,  it  is  an  external  command  addressed  by  the 
public  authority  to  the  wills  subject  to  this  rule;  sub- 
jectively, it  is  the  external  realization  of  the  freedom  of 
the  will,  for  which  power  ("Befugnis")  opens  a  sphere 
of  action  and  obligation  establishes  a  sphere  of  restriction. 

«  Cf.  Gneist,  "Der  Rechtsstaat,"  1872,  2d  ed.  1879. 

^^Gierke,  "Die  Grundbegriffe  des  Staats  und  die  neuesten  Staatsrechts- 
theorien,"  in  Zeitschrift  filr  die  Gesammte  Staatswissenchaft,  vol.  xxx,  p.  IGO 
(1874).  See  the  development  of  these  ideas  in  Preuss,  "Gemeinde, 
Staat,  und  Reich  als  Gebietkorperschaften,"  1889. 


334  LÉON  DUGUIT  [Ch.X 

3:  Law  and  the  State  Proceed  Together. 
But,  said  Gierke,  the  law  is  no  more  a  child  of  the 
State  than  the  State  is  a  child  of  the  law;  in  fact,  the 
law  and  the  State  exist  at  the  same  time,  and  each  is  born 
of  the  other.  We  cannot  conceive  either  of  State  or  law 
without  the  other  ;  neither  one  existed  before  or  through 
the  other,  and  science,  if  it  is  to  be  strictly  realistic, 
should  fully  recognize  this  relation.  Preuss,  developing 
the  same  idea,  wrote:  "Born  at  the  same  time  like  twin 
sisters,  when  humanity  was  established,  these  two  ideas 
(law  and  the  State)  were  not  strangers  to  each  other; 
in  the  course  of  the  long  development  of  humanity,  they 
continually  interpenetrated  each  other,  each  drawing 
after  itself  and  developing  the  other.  To-day  they  are 
developed  to  the  point  that  our  law  has  become  State 
law  and  our  State  a  law  State."  The  State  should 
no  more  be  looked  upon  as  creator  of  the  law,  from 
the  recognition  of  State  law,  than  as  creature  of  the 
law,  from  the  expression  "law-State"  ("Rechtsstaat").'*^ 
According  to  these  doctrines,  the  State  is  only  a  social 
form,  of  the  same  nature  as  others,  and  law  is  thus  born 
of  every  social  formation.  "From  the  fact  alone," 
said  Preuss,  "that  two  men  live  beside  each  other,  arises 
the  necessity  of  a  limitation,  under  some  form,  of  their 
spheres  of  will  as  regards  each  other,  and  from  this  neces- 
sity comes  the  idea  of  law."*^  The  acceptance  of  a 
State  anterior  to  the  law  rests  on  the  confusion  of  one 
form  of  the  development  of  law  with  the  idea  of  law. 
It  is,  according  to  Gierke,  a  clumsy  fiction  to  admit  that 
at  a  certain  moment  a  State  existed  without  law,  that 
a  power  first  developed  itself,  and  that  only  subsequently 
the  idea  of  law  came  to  light.  "It  is  indifferent  for  the 
idea  of  law  that  there  are  means  of  external  power  at  its 

"  Preuss,  "Gemeinde,  Staat,  Reich"  (1889),  pp.  205-6. 
«8  Id.  p.  204. 


§192]  THE  RULE  OF  LAW  335 

service,  and  the  law  without  power  and  without  action  is 
none  the  less  the  law.  .  .  .  Let  coercion  be  incompletely- 
organized,  let  it  even,  perhaps,  be  impossible  as  a  con- 
sequence of  the  lack  of  a  power  to  coerce,  and  the  idea 
of  law  will  not  disappear.  The  idea,  however,  that  the 
enforcement  of  every  rule  of  law  by  means  of  coercion 
is  legitimate  and  desirable,  is  a  just  one."  *^  Gierke 
says  also  with  much  reason:  "An  incontestable  and 
rational  function  of  law  is  the  regulation  and  direction 
of  the  internal  life  of  the  State."  ^^ 

4:  The  State  is  a  Legal  Person.  Up  to  this 
point  these  ideas  are  ours,  or  very  nearly  so;  and  we 
are  happy  to  have  the  support  of  the  great  authority 
of  Gierke.  There  is  a  rule  of  conduct  because  of  the 
single  fact  that  men  group  themselves  together,  and  as  a 
necessary  product  and  accompaniment  of  this  grouping; 
and  this  rule  of  conduct  is  a  rule  of  law,  whether  there 
is  or  is  not  any  organized  coercion.  We  cannot  follow 
the  learned  author,  however,  when  he  teaches  that 
every  collective  body  is  necessarily  a  legal  personality. 
"The  State,  like  every  other  organized  collective  body, 
is  a  collective  existence  juridically  ordained."  ^^  He 
holds  even  that  the  State  has  a  double  personality,  of 
private  law,  and  of  public  law  in  the  quality  of  a  person 
who  commands.  Preuss  follows  this  doctrine  faithfully. 
The  essential  identity  of  corporations  and  the  State  is  the 
capital  point;  every  corporation  is  a  legal  person;  the 
State  is  a  legal  person,  a  conception  which,  Preuss 
recognizes,  is  the  result  of  a  rather  long  evolution.  This 
is  the  only  way,  adds  this  writer,  by  which  the  State 
can  be  brought  within  the  circle  of  the  law,  within  the 
net   of  obligations  with   which   the   law  surrounds  all 

"  Gierke,  loc.  cit.,  p.  180. 

sold.  p.  181. 

"  Id.  p.  171.     Cf.  Gierke,  "Die  Genossenschaftstheorie,"  1887. 


336  LÉON  DUGUIT  I  Ch.  X 

persons/^  On  ail  these  points,  Gierke  and  Preuss  have 
only  a  priori  affirmations.  For  them  the  personality  of 
the  State  is  a  dogma  which  must  be  accepted  if  the  State 
is  to  be  a  "law-State" — -a  State  governed  by  the  law. 
For  our  part,  we  do  not  accept  dogmas  of  any  kind,  and 
we  hope  to  establish  the  fact  that  the  powers  of  the  State 
can  be  limited  by  law  without  any  necessity  for  depend- 
ing on  the  fiction  of  personaUty. 

Is  not  Gierke,  besides,  in  contradiction  with  himself, 
does  he  not  fall  back  either  on  the  doctrine  of  the  rights 
of  individuals  or  on  that  of  law  created  exclusively  by 
the  State?  when  he  says:  "Although  the  social  functions 
of  the  State  and  of  the  law  are  of  a  different  nature,  they 
are  nevertheless  established  by  each  other  and  can  be 
completely  fulfilled  only  by  each  other.  To  acquire 
the  internal  force  needed  for  its  mission  of  civilization, 
the  State  needs  the  support  of  the  conception  of  law. 
Inversely  the  law  needs  the  active  help  of  the  State  to 
accomplish  its  end.  Without  the  aid  of  State  power 
the  law  cannot  fully  complete  its  mission;  it  is  incom- 
plete, unsuitable  to  its  task:  law  is  perfected  only  when 
the  power  of  the  State  is  put  at  its  disposal.  The 
bringing  forth  of  the  law  and  the  protection  of  the  law 
are  necessary  functions  of  the  State."  ^^  Here  Gierke 
seems  to  adopt  the  doctrine  of  Jhering,  of  Jellinek,  and 
of  the  other  writers  who  see  in  the  State  the  unique  and 
sovereign  creator  of  law.  For  Gierke  the  idea  of  law 
is  undoubtedly  independent  of  the  idea  of  the  State,  but 
he  does  not  seem  to  admit  what  for  us  is  the  essential 
point,  that  the  State  is  obliged,  by  a  rule  of  law  superior 
to  it,  to  fulfill  its  civilizing  mission,  that  its  duty  of 
culture  is  a  juridical  obligation,  and  that  the  means 
which  it  can  and  should  employ  to  carry  out  this  mission 

62  Preuss,  loc.  cit.,  p.  213. 
i^Gierke,  loc.  cit.,  p.  178. 


§192]  THE  RULE  OF  LAW  337 

are  themselves  determined  by  the  rule  of  law.     Gierke 
limits  himself  to  saying  that  the  State  cannot,  in  fact, 
accomplish  its  work  of  civilization  except  by  means  of 
the  law.     It  is,  then,  merely  in  fact,  as  Jhering  and 
Jellinek  teach,  that  the  State   has  subordinated  itself 
to  law,  while  for  us  it  is  in  law  that  the  State  is  sub- 
ordinate to  a  higher  rule  which  binds  it  to  certain  obli- 
gations.    At   bottom   Gierke's   doctrine  on   this   point 
results  in  the  voluntary  subordination  of  the  State  to 
law.     True,  the  learned  professor  elsewhere  says:   "The 
law  for  its  part  has  to  fix  the  limits  within  which  should 
be  maintained  the  free  pursuit  of  individual  objects  as 
well  as  of  social  objects,  by  every  existing  will,  even  by 
that  of  the  State."  ^*     However,  if  it  is  not  by  virtue  of 
the  law  that  the  State  is  obliged  to  pursue  its  work  of 
civilization,  and  if  the  State's  mode  of  action  in  the 
accomplishment  of  this  work  is  not  regulated  by  the 
law  —  if  in  a  word,  in  Gierke's  own  language,  the  State 
has  separately  and  distinctly  the  two  characters  of  law- 
State  and  culture-State  —  how  can  it  be  understood  that 
there  are  limits  fixed  by  law  on  the  culture-State,  that 
is,  on  the  State  so  far  as  it  is  working  for  the  devel- 
opment of  civilization? 

5:  Individualistic  Doctrinarism  in  Gierke. 
Gierke  saw  perfectly  the  possibility  of  this  objection, 
but  to  avoid  it  he  reached  a  doctrine  singularly  near  to 
that  of  French  individualism  ;  it  is  merely  set  forth  in  a 
more  scholarly  and  abstract  form.  "The  law,"  he  says, 
"does  not  include  both  individual  and  State;  on  one 
hand,  the  State  is  not  only  a  law-State,  it  is  also  a  culture- 
State,  and  in  this  character  it  has  a  special  activity; 
on  the  other  hand,  the  individual,  on  his  own  account, 
because  he  is  an  individual,  has  a  certain  sphere  of 
activity;  and  the  law  comes  forth  to  regulate  and  to 

"  Id.  p.  179. 


338  LÉON  DUGUIT  [Ch.X 

limit  these  spheres  of  activity  of  the  State  (public  law) 
and  of  the  individual  (private  law).  Human  existence 
does  not  lose  itself  in  that  of  the  race,  it  is  an  end  in 
itself;  we  should  recognize  the  individual  'vis-à-vis'  the 
State  as  an  original  essence,  existing  through  itself, 
bearing  its  object  within  itself  ."^^  This  is  pure  individu- 
alist doctrine.  There  is  a  limitation  on  the  action 
of  the  State,  based  upon  the  law,  but  this  limitation  is 
found  in  the  sphere  of  activity  belonging  to  and  recog- 
nized a  priori  in  the  individual,  "an  original  essence, 
existing  through  itself,  bearing  its  object  within  itself." 
Thus  Gierke's  doctrine,  in  last  analysis,  results  either  in 
the  creation  of  law  by  the  State,  or  in  the  recognition 
of  individual  rights  belonging  to  man  as  man.  It  rests 
further  on  the  dogmatic  affirmation  of  the  pretended 
personality  of  the  State,  which  has  never  been  proved. 

6:  The  Primary  Conception  of  the  Rule  of 
Law.  Our  conception  of  the  rule  of  law  remains  intact. 
The  rule  of  conduct  contained  in  the  conception  of 
social  solidarity  is  the  rule  of  law.  Our  primary  idea  of 
law  is  that  of  a  rule  imposing  itself  on  men  because  they 
are  individual  and  social,  and  appHcable  to  every  exter- 
nal manifestation  of  individual  will  without  exception, 
whatever  be  the  manifestation,  whoever  the  agent  of 
such  will. 

"  Id.  p.  182. 


§193]   STATE  AND  LAW  AS  ACTUALITIES      330 


CHAPTER  XI 1 

THE  STATE  AND  LAW,  AS  CONCRETE  FACTS 
RATHER  THAN  ABSTRACT  CONCEPTIONS 

THE  BASIS  OF  MODERN  THEORIES:  THE  STATE-PER- 
SON—THE SELF-LIMITATION  OF  THE  STATE-PERSON  — 
THESE  THEORIES  ARE  EMPTY  OR  DANGEROUS  —  THE 
TRUE  THEORY,  BASED  ON  CONSCIOUSNESS  AND  WILL — 
THE     STATE  —  POSITIVE     STATUTORY     LAW  —  SUMMARY, 

§  193.  TheBasis  of  Modern  Theories:  The  State-Person. 
Our  general  conclusion  will  be  negative  like  the  idea 
itself  which  inspired  this  book. 

Modern  theories  relating  to  the  State  and  to  public 
law  rest  in  general  on  the  following  ideas.  The  State 
is  the  personification  of  the  community,  conceived  as 
a  subject  of  law.  This  State-person  has  a  will  with  the 
peculiar  power  of  being  moved  to  action  only  by  itself. 
This  power  is  sovereignty.  By  virtue  of  this  sovereignty, 
the  State  creates  objective  law  through  its  omnipotence, 
and  assures  respect  for  it  by  force.  The  State  also 
intervenes  to  assure  the  progress  of  civilization  and  for 
self-preservation,  but  it  never  loses  its  character  of  sover- 
eign person,  and  all  its  acts  are  those  of  a  public  power. 
More  or  less  apparent,  this  character  always  exists. 
The  State  acts  through  individuals,  who,  however,  have 
no  power  of  their  own,  they  are  merely  organs  of  the 
State-person.     There  is,  therefore,  a  public  law  quite 

1  [This  chapter  =the  Conclusion,  pp.  613-618,  of  the  author's  treatise; 
the  omitted  parts  elaborate  certain  consequences  and  applications  of 
his  thesis.  —  Ed.] 


34Ô  LÉON  DUGUIT  (Ch.XI 

distinct  from  private  law.  It  includes  the  rules  relating 
to  the  organization  of  the  State  and  to  its  relations  with 
other  personalities.  These  relations  are  always  those  of  a 
sovereign  power  with  another  sovereign  power  or  with 
subordinate  personalities;  they  are  absolutely  distinct 
from  the  private  relations  between  persons  who  are 
equal  and  not  sovereign. 

§  194.  The  S  el j -Limitation  of  the  State-Person. 
Nevertheless,  it  was  appreciated  that  this  sovereignty 
of  the  State  could  not  be  in  fact  absolute  and  unlimited  ; 
and  yet,  if  it  creates  law,  how  can  it  be  limited  by  law? 
For  a  long  time  it  was  believed  that  the  difficulty  could 
be  settled  by  the  conception  of  natural  individual  rights, 
but  now  it  is  admitted  that  this  doctrine  has  no  solid 
foundation;  the  new  individualism  itself  even,  if  it  can 
set  a  limit  to  the  action  of  the  State,  is  unable  to  found 
its  obligation  to  act.  Abandoning  individualism,  nothing 
remains  but  the  idea  of  the  self-limitation  of  the  State: 
the  self-controlled  sovereign  State  may  limit  itself,  and 
thus  the  whole  of  public  law  will  have  no  other  foundation 
than  the  self-limitation  of  the  State.  A  sovereign  col- 
lective person,  an  objective  law  created  by  its  sovereign 
will,  relations  arising  between  this  sovereign  and  other 
persons,  relations  guaranteed  only  by  the  restrictions 
which  the  sovereign  is  willing  to  apply  to  itself, —  here 
are  the  State  and  public  law,  such  as  they  are  con- 
structed by  the  great  majority  of  modern  jurists. 

§  195.  These  Theories  are  Empty  or  Dangerous. 
We  have  tried  to  show  the  nullity  and  the  danger  of 
these  various  conceptions.  The  personification  of  the 
State  presupposes  the  real  existence  of  every  collective 
body  (collectivity),  distinct  from  that  of  the  individuals 
composing  it.  It  is  admitted  necessarily  that  this 
existence  has  never  been  proved;  some  say  that  this 
personification  only  exists  in  the  eye  of  the  law,  others 


§195]  STATE  AND  LAW  AS  ACTUALITIES      341 

that  it  is  a  fiction,  others  again  that  it  is  an  abstraction. 
The  science  of  law,  however,  is  not  in  a  world  of  its  own, 
it  is  in  the  world  of  reality;  it  deals  with  concrete  facts, 
not  with  fictions  and  abstractions.  Jurists,  because 
they  have  not  understood  this,  have  worn  themselves 
out  for  centuries  in  scholastic  controversies  without 
object  and  without  profit.  Furthermore,  the  idea  of 
sovereignty  results  inevitably  in  the  absolutism  of  the 
State,  which  the  theory  of  self-limitation  is  powerless 
to  prevent.  But  the  science  of  public  law  is  not  worthy 
of  the  name  if  it  cannot  establish  a  rule  superior  to  the 
State  itself,  which  fixes  both  its  negative  and  positive 
duties.  Finally,  to  make  of  the  State  the  personification 
of  the  community,  and  to  oppose  it  to  the  subordinated 
individual,  is  to  create  or  aggravate  the  conflict  between 
the  individual  and  the  community,  between  individual 
and  collective  interests;  is  to  stir  up  the  struggles  of 
society,  and  to  prepare  the  triumph,  before  long,  either 
of  revolutionary  anarchism  or  of  tyrannical  collectivism. 
Behind  the  current  formulas  of  jurists,  we  find  then  only 
emptiness  or  dangerous  conceptions. 

§  196.  The  True  Theory,  Based  on  Individual  Con- 
sciousness and  Will.  We  must  try,  nevertheless,  to 
show  what  the  truth  is.  We  believe  that  the  two  ele- 
mentary and  incontestable  facts  are  the  consciousness 
and  will  of  the  individual.  On  another  side,  obser- 
vation shows  that  man  is  social,  that  is,  solidary  with 
other  men.  Rightly  understood,  this  solidarity  is  simply 
the  permanent  coincidence  of  individual  and  social  ends. 
Man,  a  social  and  individual  being,  can  live  only  by 
means  of  this  solidarity.  This  he  has  always  understood, 
though  more  or  less  fully  in  different  epochs.  Social 
solidarity  is  accordingly  the  whole  of  humanity.  Con- 
sequently if  humanity  wills  itself  it  should  will  social 
solidarity.     If  there  is  a  social  mandate,  it  can  only  be 


342  LÉON  DUGUIT  [Ch.xi 

one  of  ends,  that  is,  a  rule  of  conduct,  because  it  applies 
to  wills.  It  may  be  summarized  in  this  formula,  Will 
solidarity,  a  rule  of  conduct  which,  though  variable 
and  contingent  on  circumstances  in  its  application,  is 
always  fundamentally  the  same,  a  rule  of  conduct  which 
is  a  true  rule  of  law,  of  equal  obligation  for  all. 

§  197.  The  State.  As  to  the  communities  qualified 
as  States,  they  are  characterized  by  the  fact  that  they 
show  a  marked  and  lasting  differentiation  between 
strong  and  weak,  that  the  strongest  monopolize  a  power 
of  which  they  are  conscious  and  which  they  have  often 
organized.  A  distinction  between  the  rulers,  possessors 
of  the  greater  force,  and  the  ruled,  subject  to  this  force, — 
that  is  the  State.  The  rule  of  law  imposes  itself  on 
the  rulers,  who  are  individuals  like  the  ruled.  They 
should  act  in  conformity  with  objective  law  and  can 
only  act  within  the  limits  which  it  fixes.  Their  will 
has  no  innate  superiority  over  that  of  the  ruled;  like 
the  will  of  the  ruled,  it  imposes  obedience  on  the  con- 
dition that  it  conforms  to  the  law  and  on  that  condition 
alone.  The  force  of  the  rulers  is  not  in  itself  legitimate, 
but  only  becomes  so  when  it  is  employed  to  uphold  law, 
that  is,  to  guarantee  every  act  of  cooperation  in  social 
solidarity.  Thus  the  State  is  not  the  exclusive  repre- 
sentative of  the  collective  interest,  it  is  a  conscious 
force  whose  duty  it  is  to  protect  social  solidarity,  a 
beneficent  synthesis  of  the  individual  and  the  collective 
interest. 

§  198.  Positive  Statutory  Law.  In  societies  which 
have  reached  a  certain  degree  of  civilization,  and  parti- 
cularly in  modern  societies,  the  rulers  formulate  dis- 
positions termed  positive  written  laws,  which  are  usually 
thought  of  as  the  creation  of  objective  law  by  the  sover- 
eign will  of  the  State.  We  have  found  that  they  are 
only  the  statement  of  the  rule  of  law,  and  the  organ- 


§198]    STATE  AND  LAW  AS  ACTUALITIES      343 

ization  of  means  designed  to  assure  respect  for  it.  Posi- 
tive formal  law  is  doubtless  imperative,  but  not  because 
it  contains  a  command  formulated  by  the  rulers,  who 
cannot  issue  commands  to  the  ruled,  being  only  in- 
dividuals like  them.  Such  law  is  imperative  because 
it  states  the  rule  of  law,  which  is  in  itself  imperative. 
Positive,  formal  law  besides  has  the  same  characteristics 
as  the  rule  of  law;  it  is  general,  continuing,  and  obliga- 
tory on  all,  —  rulers  and  ruled;  it  does  not  create  sub- 
jective rights,  it  simply  implies  objective  powers  and 
duties. 

§  199.  Summary.  A  subjective  situation  can  grow 
only  out  of  the  act  of  an  individual  will  ;  it  only  appears 
when  an  individual  will,  whether  that  of  a  ruler  or  of 
a  subject,  is  determined  by  an  end  in  conformity  with 
law, —  that  is,  by  an  end  of  social  solidarity.  This 
subjective  legal  situation  ought  not  to  be  brought  within 
the  a  priori  idea  of  a  relation  between  two  subjects 
of  law,  a  narrow  formula  borrowed  from  the  Roman 
law,  a  superannuated  survival  of  a  false  individualism. 
An  end  of  solidarity  is  willed  ;  it  should,  then,  be  realized, 
and  every  conscious  force  is  obliged  to  cooperate  in  this 
realization.  All  the  doctrines,  all  the  controversies  on 
the  subject  of  law,  are  pointless.  Only  the  end  of  soli- 
darity legitimates  the  individual  will,  and  every  indi- 
vidual will  decided  by  such  an  end  produces  a  legal  effect 
which  should  be  protected. 

Individual  consciousness  and  individual  wills  solidary 
with  one  another;  a  rule  based  on  this  solidarity,  which 
is  a  mandate  for  individual  consciousnesses  and  wills; 
individuals  stronger  than  others,  who  in  consequence 
of  this  rule  are  under  a  duty  to  put  their  strength  at  the 
service  of  solidarity  ;  a  statement  of  this  rule  by  the  rulers 
and  an  organization  of  means  of  sanction, —  this  is  the 
State,    objective   law   and    positive   formal   law.     The 


344  LÉON  DUGUIT  [Ch.XI 

notions  of  the  personality  of  the  State,  of  sovereignty, 
of  subjects  of  law,  do  not  respond  to  reality  and  should 
be  definitely  banished. 

Perhaps  we  deceive  ourselves.  We,  as  well,  may  be 
putting  pure  abstractions  in  place  of  facts,  and  like  the 
jurists  whom  we  criticise,  we  may  have  attempted  to 
bring  within  an  a  priori  conception  the  highly  complex 
and  multiple  phenomena  of  the  social  world.  We  are 
not  blind  to  the  imperfections  of  this  book.  We  have 
written  it  in  good  faith,  more  convinced  than  any  one 
of  the  extreme  difficulty  of  the  subject.  It  is  possible, 
after  all,  that  we  have  been  deceived  and  that  the  truth 
is  elsewhere.  However  that  may  be,  we  firmly  believe 
that  the  jurists,  if  they  persist  in  the  road  which  they 
have  been  traveling  for  centuries,  will  be  blind  to  all 
scientific  progress,  and,  what  is  graver  still,  will  mis- 
construe the  aspirations  and  needs  of  our  time. 


(C)     ANALYSIS  OF  FUNDAMENTAL  NOTIONS 
—  RENÉ  DEMOGUE 

Author's  Preface  to  Translation 347 

Preface  to  the  Original  Work 349 

Chapter      XII.    The  Notion  of  Law 351 

Chapter     XIII.    Security 418 

Chapter     XIV.    Evolution  and  Security 446 

Chapter       XV.    Economy  of  Time  and  Activity.  . .  471 

Chapter     XVI.    Justice 480 

Chapter    XVII.    Equality 500 

Chapter  XVIII.    Liberty 507 

Chapter     XIX.    Solidarism  and  the  Apportionment 

OF  Losses 525 

Chapter       XX.    The  Notion  of  General   Interest  538 

Chapter     XXI.    Future  Interest 546 

Chapter    XXII.    Moral  Interest 553 

Chapter  XXIII.    Conclusion 564 


AUTHOR'S  PREFACE  TO  TRANSLATION 

This  translation  should  be  preceded  by  an  expression 
of  thanks  and  by  an  explanation. 

It  is  an  agreeable  duty  for  me  to  thank  the  eminent 
members  of  the  Committee  on  the  Study  of  Legal  Phil- 
osophy, who  have  undertaken  the  praiseworthy  mission 
of  presenting  to  the  American  public  a  selection  of  works 
by  French  authors  on  the  philosophy  of  law.  It  should, 
however,  be  noted  that  the  following  translation  contains 
only  a  part  of  the  work  which  I  published  at  Paris  in 
1910,  with  the  title  of  "Les  Notions  Fondamentales  du 
Droit  Privé  (Essai  Critique  pour  Servir  d'Introduction 
à  l'Étude  des  Obligations)."  In  the  first  part  of  that 
study,  which  alone  has  been  translated  in  this  series,  I 
have  treated  of  the  Notion  and  the  Bases  of  Law. 

The  second,  for  which  there  was  not  room  in  this 
volume,  while  yet  general,  is  concerned  more  with  the 
notions  of  law  currently  admitted  in  the  law  of  the  Con- 
tinent of  Europe.  It  has  for  its  object  technic,  which  is 
first  considered  generally,  then  in  more  detail  as  legis- 
lative, judicial,  and  doctrinal.  The  rules  which  a  correct 
technic  imposes  on  legislators,  judges,  and  writers,  are 
laid  down.  After  examining  several  difficulties  of  a 
general  order,  like  the  utility  of  fictions  and  the  rôle 
of  comparative  law,  attention  is  given  in  subsequent 
chapters  to  questions  of  application.  Fundamental 
notions  are  criticised,  such  as  those  of  the  subject  of 
law,  the  heritable  estate  [patrimoine],  the  distinction 
between  absolute  and  relative  rights,  the  content  of  a 
right  from  the  point  of  view  of  its  transformation  into 
money,   the  independence  of  the  individual  from  the 


348   AUTHOR'S  PREFACE  TO  TRANSLATION 

point  of  view  of  private  law,  the  action  at  law  and  the 
rôle  of  the  judge,  and  the  principles  of  proof. 

The  third  part  of  the  French  edition  is  a  study  of  a 
problem  which  has  not  yet  been  stated  by  contemporary 
French  law  writers;  that  is,  whether  in  our  modern 
States,  in  spite  of  the  importance  of  the  public  power, 
there  is  not  a  certain  rôle  reserved  for  private  persons 
in  what  seem  to  be  the  special  missions  of  the  State: 
making  laws,  doing  justice,  commanding  and  assuring 
the  material  execution  of  obligations  between  individuals. 
The  chapters  devoted  to  these  various  points  are  intended 
to  show  that,  despite  appearances,  the  share  of  private 
citizens  is  important  and  even  seems  called  upon  to 
extend  itself. 

Thus,  while  it  is  possible  to  study  these  three  parts 
separately,  they  form  a  single  whole,  united  by  the 
purpose  of  examining  the  principal  fundamental  diffi- 
culties which  relate  in  their  consequences  not  to  a  given 
juridical  problem,  but  to  the  whole  system  of  private 
law,  and  especially  to  the  theory  of  obligations. 

The  original  text  was  entirely  revised  before  being 
translated.  I  have  tried  to  make  my  thought  clear  and 
exact,  as  far  as  may  be  done  in  a  study  of  general  theories 
which  necessarily  touches  upon  a  great  many  questions, 
a  circumstance  which  forces  a  considerable  concentration 
of  ideas.  Thanks  to  that,  I  am  happy  to  think  that  the 
American  public  will  have  the  truest  expression  of  my 
thought  as  a  law  writer  on  the  points  treated. 

René  Demogue. 


Lille,  December,  içii. 


PREFACE  TO  THE  ORIGINAL  WORK^ 

This  book  is  not  a  study  of  positive  law.  The  general 
principles  which  dominate  private  law  have  been  studied 
in  the  past  few  years  by  M.  Planiol  and  M.  Capitant, 
whose  pages  render  any  new  examination  of  it  hardly 
worth  while.  I  have  adopted  mainly  a  critical  point 
of  view,  in  order  to  show,  without  seeking  to  disguise 
anything,  the  conflicts  and  contradictions  which  will 
no  doubt  always  agitate  private  law,  and  my  object 
will  be  attained  if  I  may  suggest  to  students  already 
through  with  elementary  studies  reflections  which  will 
help  them  to  penetrate  to  the  basis  of  institutions. 

Accordingly,  one  may  hope  for  a  fuller  realization 
of  the  transformation  which  is  taking  place  before  our 
eyes,  in  this  matter,  apparently  so  slow  to  change,  of 
Obligations.  It  may  better  be  conceived  if  one  takes 
care  not  to  forget  that  the  imitations  and  consequences 
proceeding  from  one  identical  cause  assure  to  all  the 
productions  of  an  epoch  a  certain  resemblance,  a  certain 
style.  The  same  clearness,  the  same  elegance,  together 
with  a  somewhat  limited  horizon,  which  are  found  in 
the  art  of  the  Trianon  and  the  music  of  Gluck  will  also 
be  discovered  in  the  juridical  constructions  and  in  the 
style  of  Pothier.  During  a  part  of  the  nineteenth 
century,  an  ungraceful,  heavy  style  of  decoration  had 
its  counterpart  in  an  entire  legal  spirit  of  very  remarkable 
nicety  and  force,  but  excluding  with  uncommon  rigor 
anything  that  did  not  fit  directly  into  its  scheme.  In 
our  own  days  an  "art  nouveau"  has  made  a  place  for 
itself,  aiming  at   a   charm   achieved  by   the   flexibility 

>  [To  which  M.  Demogue  has  added  the  final  paragraph,  here  printed 
from  manuscript. — Ed.] 


350     PREFACE  TO  THE  ORIGINAL  WORK 

of  its  forms,  by  borrowing  from  the  scarcely  mannerized 
realities  of  the  day,  and  by  adaptation  to  practical 
needs.  When  the  recoil  of  the  age  shall  have  produced 
its  effect,  a  certain  music  will  also  not  seem  far  from 
being  governed  by  these  external  factors.  Is  it  sur- 
prising that  all  the  productions  of  the  mind  form  to-day 
a  sort  of  symphony  with  these  factors?  Does  not  the 
spirit  of  the  age  tend  to  fashion  unto  itself  a  legal  art 
suppler  in  its  theorizing  —  too  rigid  juridical  con- 
structions being  sufficiently  criticized  to-day  —  and  a 
law  in  closer  touch  with  practical  realities,  borrowing 
more  from  the  data  of  political  economy,  and  approach- 
ing more  closely  to  that  legal  elucidation  which,  in  spite 
of  possible  errors,  is  synonymous  with  life  and  uncon- 
sciously expresses  the  strongest  practical  needs?  This 
is  what  I  have  sought  to  bring  out,  in  applying  myself, 
in  the  midst  of  these  transformations,  these  diverse 
legal  styles,  to  the  task  of  locating  the  abiding  reality 
that  corresponds  to  the  aspirations  of  our  spirit. 

I  have  sought  to  affirm  the  existence  of  anything  that 
is  durable  in  the  midst  of  transformations  and  have  care- 
fully attempted  to  throw  some  light  upon  it  in  this  book. 
But  I  confess  that  it  is  only  with  difficulty  discerned, 
in  the  face  of  the  numerous  changes  of  social  life.  This 
is  no  reason  for  leaving  its  existence  unrecognized,  but 
it  is  a  reason  for  not  exaggerating  its  extent  as  the  school 
of  natural  law  did.  We  thus  come  to  adopt  a  miti- 
gated system,  a  sort  of  just  mean  between  objectionable 
extremes,  which  avoids  the  purely  doctrinary  systems 
that  have  done  so  much  to  bring  the  philosophy  of  law 
into  disrepute.  We  also  come  to  close  quarters  with  the 
given  facts  of  practical  life.  If  the  result  is  an  ensemble 
of  highly  complex  observations  one  ought  not  to  be  sur- 
prised, when  such  a  thing  is  involved  as  this  science  of 
law  of  which  highly  complex  phenomena  of  social  life 
are  the  concern. 


(C)    ANALYSIS  OF  FUNDAMENTAL 
NOTIONS  — RENE  DEMOGUE 

CHAPTER  XII  * 
THE   NOTION  OF  LAW 

THE  NOTION  OF  LAW  BOUND  UP  WITH  THE  IDEA  OF 
A  CONTINUOUS  PROTECTION  OF  VARYING  INTERESTS  — 
REALISTICALLY  DEFINED,  LAW  IS  THAT  WHICH  IS  IM- 
POSED WITHOUT  RECOURSE  BY  AN  ORGANIZED  FORCE  — 
COERCION  NEED  NOT  BE  EXERCISED  IN  FACT  — LAW 
VIEWED  AS  A  DURABLE  FORCE  — LAW  AND  NOT-LAW — 
FORCE  AND  CONTINUITY  THE  CHIEF  MARKS  OF  LAW — 
THE  RELATIONS  BETWEEN  LAW  AND  MORALITY  — 
IDEAL  LAW  (EXECUTORY  MORALITY)  HAS  A  PRACTICAL 
USE    FOR    SOCIETY 

THE  METHOD  OF  ESTABLISHING  THIS  IDEAL  LAW  — 
THE  SCHOOL  OF  NATURAL  LAW  — OTHER  DOCTRINES 
LACK  PRECISION  — THE  HISTORICAL  SCHOOL  — THE 
THEORY  OF  A  LAW  OF  NATURE  WITH  VARIABLE  CON- 
TENT—SOME FORM  OF  IDEAL  LAW  IS  ESSENTIAL  TO 
LEGAL  THEORY  — THE  LEGAL  SYSTEM  MUST  ADAPT 
ITSELF  TO  ACTUAL  CONDITIONS,  YET  MUST  ALSO  SEEK 
AN  IDEAL  — THE  THEORY  OF  LÊVY-BRUHL  —  MORALITY 
VARIABLE,  LIKE  IDEAL  LAW  — THEORIES  SPECIALLY 
CONCERNED  WITH  THE  CONTINGENT  ELEMENT  ARE 
INCOMPLETE  — THEORY  OF  TECHNIC  OF  ROGUIN  AND 
PICARD  — HOW    SHALL    THE    PERMANENT    GOAL    OF    HU- 

*  [Chapters  xii-xxiii  here  =  chapters  i-xii  (the  whole  of  Part  I)  of  the 
French  volume.  For  this  author  and  work,  see  the  Editorial  Preface. 
—Ed.] 


352  RENÉ   DEMOGUE  [Ch.XII 

MANITY  BE  DEFINED?— THERE  IS  AN  OBJECTIVE  MEAN- 
ING OF  LIFE.  BUT  IT  CAN  BE  CONCEIVED  ONLY  SUBJEC- 
TIVELY—THE RECONCILIATION  OF  SUBJECTIVE  CON- 
CEPTIONS, PSYCHOLOGICALLY  CONSIDERED  —  THE  ROLE 
OF  COMPROMISE:  TARDE'S  THEORY  OF  OPPOSITION  — 
THE  RELATIVITY  OF  A  SOCIAL  IDEAL  PROMOTED  BY 
THE  INSTINCT  OF  IMITATION  IS  OUR  REFUGE  FROM 
MORAL  NIHILISM— THE  QUEST  OF  UNIVERSALITY;  A 
CRITICISM  OF  TARDE  —  IDEAL  LAW  HAS  IDEAS  OF 
GENERAL    VALIDITY 

THE  NEVER-ENDING  STRUGGLE  OF  MOTIVES  FORCES 
US  TO  DEAL  EMPIRICALLY  WITH  IDEAL  LAW  — OUR  POS- 
TULATE OF  AN  IDEAL  LAW  FOR  EACH  STATE  OF  SOCIETY 
—  CAN  ACTUAL  LAW  SATISFY  THE  MIND?— THE  TENTA- 
TIVE BASIS  OF  IDEAL  LAW  — THE  LIMITATIONS  OF 
TECHNIC  AS  A  RECIPE  FOR  LAW  — THE  PRINCIPLE  OF 
MASS  ACTION  —  JUSTICE  AND  SOCIAL  EVOLUTION  — 
"PRINCIPLES  OF  LAW"  SANCTIONED  BY  THEIR  DYNAMIC 
VALUE  — THE  OPPOSITION  OF  DESIRE  AND  BELIEF  — 
PRACTICAL  REALIZATION  OF  IDEAL  LAW;  COERCION  — 
THE  COMPLEXITY  OF  THE  SUBJECT  ABOUT  TO  BE 
EXAMINED  THUS  APPARENT. 


"It  is  not  given  to  any  one  to  sound  the  abyss,  but  he 

who  does  not  yield  to  the  temptation  to  gaze  occasionally 

into  its  depths,  gives  evidence  of  a  very  superficial  spirit." 

Renan,  "Dialogues  Philosophiques,"  p.  vii. 


§  200.  The  Notion  of  Law  Bound  up  with  the  Idea  of 
a  Continuous  Protection  of  Varying  Interests.  Whether 
a  person  has  or  has  not  a  given  right,  is  an  idea  which 
evidently  has  to  do  with  a  concern  for  the  future.  He 
who  puts  this  question  to  himself,  is  interested  in  know- 
ing what  will  happen,  in  case  he  does  or  does  not  do  a 
certain  act,  and  whether  the  consequences  of  his  action 
or  abstention  will  be  advantageous  to  him.  From  this 
point  of  view,  the  rights  which  may  be  spoken  of  to  him, 


§2001  THE   NOTION   OF   LAW  353 

his  possible  interests,  appear  as  varying  greatly  in  degree. 
They  seem  to  him  more  or  less  difficult  to  protect.  Thus 
the  fact  of  being  owner  of  real  property  or  of  personalty 
appears  as  an  advantage,  in  that,  in  the  first  place,  he 
can  take  material  possession  of  the  property,  even  against 
the  will  of  others,  and  in  spite  of  the  opposition  of  the 
person  actually  in  possession.  The  owner  can  enter 
forcibly  and  install  himself  on  his  land.  Ownership  of 
personalty  entails  fewer  sure  consequences;  while  its 
mobility  makes  it  possible  to  hide  it  for  safe  keeping,  it 
may  also  for  this  very  reason  be  stolen  and  not  recovered. 

On  the  other  hand,  the  right  to  a  good  reputation  is 
harder  to  guard  ;  defamation  cannot  be  prevented  abso- 
lutely, but  only  indirectly  and  incompletely. 

Not  only  are  interests  not  to  be  valued  solely  with 
reference  to  the  possibility  of  their  protection  by  pre- 
ventive means,  but  from  the  point  of  view  of  the  person 
entitled  their  value  is  not  determined  with  reference  to 
the  possibility  of  reparation  of  injury  done  to  them. 
If  damage  is  done  to  a  certain  kind  of  interests,  the 
situation  previously  existing  may  be  restored;  if  a  wall 
has  been  broken  down,  a  building  damaged,  the  injury 
may  be  effaced  by  repairs  which  put  the  property 
into  shape.  In  other  cases,  a  more  or  less  complete 
equivalent  may  be  obtained  ;  a  sum  of  money  may  fairly 
well  replace  a  piece  of  furniture,  but  it  will  compensate 
less  satisfactorily  the  loss  of  a  picture  by  a  deceased 
master.  On  the  other  hand,  there  is  no  indemnity  which 
will  sufficiently  compensate  for  the  loss  of  a  limb,  or  of 
life,  or  for  slander  or  libel. 

Interests,  then,  are  capable  of  different  degrees  of 
protection,  whether  by  way  of  prevention  or  of  repara- 
tion. Every  man  who  considers  these  interests  sees  that 
some  are  more  fragile  than  others,  because  they  are  more 
liable  than  others  to  injury  from  untoward  events. 


354  RENÉ   DEMOGUE  [Ch.XII 

There  is  a  second  point  equally  important  for  every  one 
in  regard  to  his  interests;  to  be  able  to  count  on  a  certain 
continuity  in  that  which  concerns  their  protection,  or 
even  their  violation.  The  facts  which  favor  or  injure 
our  interests  are  estimated  in  proportion  as  their  effects 
are  lasting.  Wind  or  hail  which  ruins  a  year's  crop 
leaves  a  hope  for  future  harvests;  a  delay  in  a  payment, 
prejudice  occasioned  where  there  is  a  responsible  person, 
allow  the  creditor  to  hope  that  compensation  will  be 
obtained  either  amicably  or  by  suit,  and  thus  are  of  only 
secondary  importance.  On  the  other  hand,  if  a  given 
territory  is  usually  devastated  by  storms  or  hail,  if 
a  certain  business  house  is  solidly  established  in  a  district 
in  which  it  seems  likely  to  hold  its  customers,  if  bands 
of  evil-doers  continually  infest  a  particular  region  and 
are  not  molested,  if  public  officials  seek  to  injure  one  sort 
of  enterprise  and  to  aid  another, —  these  are  lasting  facts 
of  great  importance.  Even  they  are  doubtless  uncertain, 
subject  to  destruction  or  change  in  a  certain  measure — 
nothing  in  this  world  is  certain  and  eternal.  The  highest 
rated  firms  may  disappear,  the  party  in  power  may  be 
turned  out,  administrative  officials  may  be  replaced  by 
others  of  a  different  mind.  There  are,  nevertheless, 
probabilities  which,  in  default  of  something  better,  should 
be  considered  as  practical  certainties.  Among  these 
probabilities,  on  which  watch  must  be  kept  since  on 
them  depends  the  safety  of  or  the  danger  to  interests, 
the  first  place  is  held  by  the  laws  of  nature,  which, 
though  imperfectly  understood,  form  a  basis  for  sup- 
positions which  will  frequently  conform  to  the  course 
of  events.  I  include  the  laws  of  psychology,  although 
they  are  much  more  uncertain  and  vague. 

Among  these  probabilities  which  it  is  important  to 
know  should  be  classed  the  actions  of  strong,  organized 
authorities.  Composed  of  groups  of  men,  they  are  stronger 


§200]  THE  NOTION  OF  LAW  855 

than  isolated  individuals,  and  more  apt,  also,  to  main- 
tain their  decisions,  or  those  which  have  been  made  by 
their  agents  or  representatives  in  their  name.  They 
have  at  once  power  and  continuity.  For  the  protection 
of  interests,  it  is  important  to  know  the  habits  of  these 
authorities,  the  result  of  which  cannot  be  avoided. 
These  habits  may  be  expressed  in  different  ways,  as 
simple  usages,  as  customs,  or  as  rules  which  they  have 
established  for  the  future  and  which  they  observe. 

When  such  a  state  of  fact  exists,  when  there  is  such  a 
probably  permanent  situation,  whether  it  is  a  result 
of  the  action  of  a  powerful  organized  band,  of  a  State,  of 
force  or  of  guile,  of  menace,  ill-will,  or  the  corruption 
of  individuals,  it  produces  a  certain  sequence  in  events 
which  cannot  be  neglected. 

In  this  zone  of  facts  capable  of  arising  because  there 
are  strong  probabilities  for  them,  lies  the  law,  —  that 
vague  and  fugitive  notion  which  we  are  about  to  try  to 
fix  from  the  point  of  view  of  observation,  then  from  that 
of  the  ideal. 

We  shall  take  a  critical  point  of  view  and  shall  de- 
liberately set  forth  the  difficulties  in  all  their  magnitude 
and  the  necessity  of  contradictions,  differing  therein 
from  a  great  many  authors,  who,  taking  up  the  point  of 
view  of  action,  of  force-ideas,  have  worked  out  theories 
which  have  hardly  endured  a  searching  examination 
and  which  have  passed  rapidly  out  of  fashion. 

§  201.  Realistically  Defined,  Law  is  that  which  is 
Imposed  without  Recourse  by  an  Organized  Force.  What 
must  be  understood  by  law  from  the  point  of  view  of 
observation  alone?  When  does  law  exist?  Law  is  that 
which  is  imposed  by  an  organized  force  from  which  there 
is  no  appeal.  Law  is  practically  a  synonym  for  social 
fact  imposed  if  need  be  by  coercion. "^     When  a  judgment 

1  Cf.  Picard,  "Le  Droit  Pur,"  p.  40,  and  Alessandro  Levi,  "La  Société 
et  l'Ordre  Juridique,"  pp.  250ff.  Schatz  very  accurately  says  that  where 
there  is  no  force  there  is  no  law,  "L'Individualisme  Économique  et 
Social,"  p.  318.    See  in  Mill  the  same  idea,  "Utilitarianism,"  chap.  v. 


356  RENÉ   DEMOGUE  [Ch.XII 

regular  in  form  and  unappealable  settles  a  point,  it  is 
law;  so  also  when  an  administrative  authority  makes 
a  decision  which  is  unattackable  or  which  has  been 
fruitlessly  attacked,  or  when  a  point  is  settled  by  a 
statute,  which  cannot  be  questioned  according  to  our 
French  notion,  to  the  contrary  of  the  American  notion. 
This  is  the  simplest  and  most  realistic  idea  of  the  law, 
that  resulting  from  observation.  It  eliminates  from  the 
domai  i  of  law  only  those  facts  against  which  an  organ- 
ized higher  force  can  forearm  us,  or  which  it  will 
make  an  attempt  to  efface  directly  or  by  equivalent. 
When  an  individual  commits  murder  in  the  depth  of 
a  wood,  even  if  he  is  affiliated  with  an  organized  band, 
a  camorra,  his  act  is  not  in  accordance  with  law,  because 
there  is  a  higher  organized  power  which  may  punish 
him,  or  force  him  to  repair  the  injury. 

The  reason  of  the  strongest  is  the  best  and  may  be 
termed  law  only  if  it  is  definitively  the  strongest,  that 
is,  the  reason  which  must  be  finally  victorious.  These 
ideas  immediately  put  beyond  the  pale  of  the  law  many 
acts  of  violence.  But  what  shall  we  say  of  cases  in 
which  the  act  which  might  have  been  attacked  by  an 
appeal  to  the  organized  superior  force  has  been  passed 
over  either  through  negligence  or  because  of  the  trouble 
or  expense  of  obtaining  redress?  Here  again,  the  act 
is  contrary  to  law.  Even  although  the  act  has,  in  fact, 
not  been  redressed,  and  the  statute,  by  a  bar  of  limitation 
or  failure  of  remedies,  protects  the  position  wrongfully 
acquired,  the  victim  always  had  the  law  on  his  side, 
that  is,  the  possibility  of  effacing  the  fact  accomplished, 
of  having  the  state  of  facts  modified  to  his  advantage. 
Observe,  however,  that  his  right,  if  it  exists,  is  greatly 
hampered  and  therefore  weakened.  If  the  organized 
force  has  been  put  in  action  against  an  individual  who 
is  the  victim  of  an  illegal  act,  either  by  mistake,  or  by 


§201]  THE   NOTION   OF   LAW  357 

corruption,  or  by  evil  intent,  its  action  is  legal,  unless 
that  organized  force  has  a  method  of  reversing  itself, 
of  redressing  the  wrongs  it  has  itself  committed,  by 
punishing  the  dishonest  or  unjust  official;  but  if  that 
force  does  not  allow  any  such  procedure,  or  if  he  who 
has  taken  the  proper  step  fails  in  his  action,  the  law  is 
against  him.^ 

Such  is  the  simplest  and  most  realistic  notion  which 
we  get  of  law  through  experience.^  It  may  be  defined 
as  the  force  which  is  the  strongest  in  the  last  resort,  the 
force  of  him  who  laughs  last  and  so  laughs  the  best, 
as  the  proverb  has  it.  It  is,  therefore,  hardly  exact 
to  say  that  law  is  greater  than  force  [le  droit  prime  la 
force],  or  that  force  is  greater  than  law,  because  law 
without  force  is  not  law  —  from  the  practical  point  of 
view  from  which  we  are  considering  it  at  present.* 

Just  so,  in  international  relations,  that  is  law  which 
is  upheld  by  an  organized  force,  not  alone  that  of  armies, 
but  also  the  indirect  and  ultimately  controlling  force  of 
moral  pressures,  in  the  form  of  more  or  less  solemn  ob- 
servations, protests,  and  acts  of  diplomacy,  behind  which 
appear  the  glitter  of  bayonets  and  the  rise  of  coalitions.* 

§  202.  Coercion  Need  Not  be  Exercised  in  Fact.  It 
is,  of  course,  not  necessary  that  coercion  should  be  in 
fact  exercised  in  order  that  a  claim  may  be  qualified 
as  a  legal  right.     It  is  enough  if  the  individual  was  in  a 

'  See  Jhering,  "Law  as  a  Means  to  an  End"  [one  of  the  volumes  trans- 
lated in  this  Series]. 

'  Compare  the  study  of  the  non-omnipotence  of  the  laws  on  p.  13  of 
Cruet,  "La  Vie  du  Droit,"  and  of  the  privileges  of  the  preponderating 
social  classes  on  p.  203  of  the  same  work. 

*  "Thus  not  being  able  to  make  that  which  is  just  strong,  man  has 
made  that  which  is  strong  just."  Pascal,  "Pensées,"  ed.  Brunschvicg, 
fragm.  298. 

'  Compare  Jhering,  "Law  as  a  Means  to  an  End."  We  do  not  even 
consider  it  wise  to  complicate  the  idea  by  adding  that  the  coercive 
force  should  be  the  State.  Why  obscure  a  notion  so  difficult  to  elu- 
cidate as  that  of  the  law  by  combining  with  it  an  idea  as  complex  as  that 
of  the  State?     See  to  the  contrary  Picard,  "Le  Droit  Pur,"  pp.  41,  44. 


358  RENÉ   DEMOGUE  [Ch.xII 

position  to  call  in  the  aid  of  this  coercion  if  he  had  need  of 
it  in  order  to  make  his  claim  good.^  As  Korkunov 
rightly  remarks,  the  legal  order  is  the  more  normal 
the  less  frequently  coercion  is  exerted  J  In  fact,  repeated 
exercise  of  compulsion  is  often  an  evidence  of  weakness 
on  the  part  of  him  who  makes  use  of  it,^  and  the  time 
comes  when  a  legal  right  cannot  be  upheld  if  it  is  not 
ratified  by  general  consent,^  Luckily  for  those  who 
make  use  of  coercion,  human  wills  are  not  always  very 
tenacious,  and  therefore  bloody  riots  and  strikes,  dan- 
gerous if  prolonged,  are  usually  of  brief  duration. 

Coercion  may,  of  course,  be  moral  as  well  as  physical, 
the  former  being  frequently  the  forerunner  of  the  latter, 
and  containing  a  warning  that  if  it  be  unheeded  some- 
thing unpleasant  will  happen. 

In  one  sense,  the  force  of  the  law  is  greater  in  advanced 
civilizations  where  less  physical  coercion  is  necessary  ;  but 
in  such  times  the  law  is  no  longer  the  object  of  the  same 
religious  cult,  it  is  appraised  at  the  value  of  its  content.^" 
In  another  sense,  coercion  being  more  necessary  when 
people  are  not  conscious  of  their  own  interests,^^  it  is 
made  less  use  of  when  they  are  better  informed. ^^^ 

•  We  therefore  refuse  to  recognize,  with  Berolzheimer  ("Rechts-  und 
Wirthschaftsphilosophie,"  vol.  iv,  p.  90),  coercion  as  something  purely- 
external  to  the  law.  See,  in  agreement  with  him,  Tanon,  "L'Évolution 
du  Droit  et  la  Conscience  Sociale,"  p.  149. 

»  Korkunov,  "General  Theory  of  Law"  [translated  as  one  of  the  volumes 
of  this  Series,  §  12,  pp.  94ff.]. 

«  Punishment  is  a  proof  of  the  weakness  of  governments,  said  Rousseau 
in  "Le  Contrat  Social."  Compare  Binding,  "Normen,"  p.  493,  who 
speaks  of  the  antagonism  contained  in  the  idea  of  violence  used  to  pro- 
tect the  law.  It  may  be  hoped  that  coercion  will  be  less  and  less  fre- 
quently used;  Picard  even  thinks  that  it  will  disappear  altogether — • 
which  is  doubtful.     See  "Le  Droit  Pur,"  p.  433. 

»  Compare  Bougie,  "Solidarisme,"  p.  45.  Tanon,  "L'Évolution  du 
Droit  et  la  Conscience  Sociale,"  p.  147. 

»*  See  Tanon,  loc.  cit.  p.  154. 

>»  SeeJhering,  "Law  as  a  Means  to  an  End." 

110  On  the  psychical  character  of  law,  see  Henri  Rolin,  "Prolégomènes 
de  la  Science  du  Droit,"  pp.  6ff.,  who  shows  very  clearly  the  rôle  that 
morality  and  the  conscience  have  in  the  law. 


§203]  THE   NOTION   OF   LAW  359 

§  203.  Law  Viewed  as  a  Durable  Force.  To  complete 
the  representation  of  the  notion  of  law,  another  point 
must,  however,  be  cleared  up.  According  to  Hauriou: 
"It  is  not  true  that  law  and  force  are  identical  because 
in  law  there  is  a  religious  element  which  pertains  to  the 
spiritual  world.  It  is  not^  true  that  force  is  the  parent 
of  law  ;  but  it  is  true  that  frequently  the  same  organiz- 
ations, developed  by  pure  force,  are  subsequently 
consecrated  by  intelligence  and  become  legal.  There 
is,  therefore,  no  natural  identity  between  force  and  law, 
but  there  is  an  historical  advance  from  a  situation  of 
fact  to  one  of  law  in  the  same  subject-matter."  ^^ 

This  succession  is,  in  a  certain  sense,  more  apparent 
than  real,  more  subjective  than  objective.  When  an 
act  of  force  has  been  accomplished  under  such  circum- 
stances that  it  cannot  be  successfully  opposed,  it  is  a 
durable  fact;  it  constitutes  legal  right,  to  make  use  of 
the  expression  which  we  have  adopted,  and  it  is  not 
necessary  that  this  fact  has  so  continued  for  a  long  time. 
If,  however,  this  is  objectively  the  case,  subjectively  a 
force  will  appear  as  invincible  only  as  a  consequence  of 
special  circumstances,  of  fruitless  attempts  to  combat 
it,  of  the  terror  which  it  has  inspired,  a  terror  which 
has  spread  abroad.  In  general  it  is  through  continued 
use  that  a  force  appears  as  a  fact  which  must  be  defi- 
nitely reckoned  with;  and,  consequently,  it  is  only  after 
the  lapse  of  a  certain  period  that  this  character  will  be 
recognized  as  belonging  to  it.  Law  when  recognized 
as  such  has  almost  always  existed  for  a  considerable 
period.  Often,  too,  with  the  passage  of  time  the  op- 
positions which  it  met  at  first  vanish,  even  without  con- 
sidering that  courtiers  multiply  about  it  who  develop 
a  theory  for  it,  and  justify  what  has  been  done.     Every 

"  "La  Science  Sociale  Traditionnelle,"  p.  195. 


360  RENÉ   DEMOGUE  [Ch.XII 

government  has  found  pretended  philosophers  to  legiti- 
matize all  of  its  acts,  even  the  most  abominable. 

The  ideas  which  we  are  here  defending  may  be  sup- 
ported by  the  great  authority  of  Jhering.  "Law,"  says 
he,  "exists  for  self-realization.  Practical  application 
is  the  life  and  the  reality  of  law,  it  is  law  itself.  That 
which  does  not  find  expression  in  real  life,  that  which 
exists  only  in  the  statute  books  or  on  paper,  is  only  a 
phantom  of  law  —  no  more  than  words.  On  the  con- 
trary, that  which  takes  effect  as  law  is  law,  even  if  it  is 
not  on  the  statute  book  and  the  people  and  legal  science 
have  not  yet  recognized  it  as  such."  " 

§  204.  Law  and  Not-Law.  These  statements,  taken 
solely  from  observation,  present  to  us  the  law  in  a  some- 
what different  light  from  that  in  which  it  is  usually 
shown.  Obedient  to  the  tendency  of  the  human  mind, 
which  inclines  toward  simple  categories,  well  marked 
frontiers,  which  unconsciously  seeks  security  with  a 
force  of  which  we  shall  later  have  more  to  say,  we  are 
willing  to  believe  that  there  are  two  distinct  classes,  one 
of  illegal,  one  of  legal,  acts,^*  but  we  have  a  great  deal 
of  trouble  in  deciding  in  which  class  to  put  this  or  that 
act,  and  frequently  end  in  doubt. 

If  we  content  ourselves  with  observing  the  facts,  if 
we  are  interested  less  in  simply  following  the  tendencies 
of  our  minds  than  in  presenting  something  more  objective, 
our  impressions  are  very  different.  Actual  or  possible 
facts  appear  as  if  ranged  in  an  unbroken  line  between 
two  extremes,  legality  and  illegality.  They  are  nearer 
to  the  limit  of  illegality  in  proportion  to  the  interest  taken 

i'"Geist  des  Rômischen  Rechts,"  French  éd.,  vol.  iii,  p.  16.  [For 
this  work  see  "Law  as  a  Means  to  an  End"  in  this  Series,  p.  455,  footnote. 
—  Ed.]  See  in  the  same  sense  vol.  i  of  this  work,  pp.  30ff .,  where  Jhering 
perhaps  adds  the  embryo  of  a  subjective  idea  by  saying  that  law  should 
be  carried  out  as  law. 

i<  In  this  sense  see  particularly  Alessandro  Levi,  "La  Société  et  l'Ordre 
Juridique,"  p.  100. 


§204]  THE  NOTION  OF  LAW  361 

by  the  organized  forces  in  preventing  or  arresting  them 
or  in  destroying  the  effect  of  their  performance.  They 
approach  that  of  legality  in  proportion  as  the  organized 
forces  put  in  their  way  fewer  obstacles,  or  afford  more 
facilities  for  their  accomplishment,  consequently  making 
individual  resistance  harder,  and  as  these  organized 
forces  are  directed  by  more  stable  wills,  which  are 
capable  of  more  perseverance,  of  greater  steadiness 
in  conceptions,  whose  execution  they  are  thus  able  to 
assure  for  a  longer  period. 

The  facts  thus  bring  us  to  the  conclusion  that  these 
two  extremes,  law  and  not-law,  are  of  almost  less  im- 
portance from  the  point  of  view  of  the  number  of  acts 
which  can  be  directly  classed  under  them,  than  are  the 
intermediate  situations.^^  If  persons  in  authority  change 
their  minds,  if  written  law  or  custom  is  modified,  existing 
rights  will  be  affected  so  far  as  they  fall  within  the  scope 
of  the  new  order.  Consequently,  the  law  is  a  somewhat 
weak  support  for  acts  which  are  to  continue  over  a  long 
period,  such  as  are  concerned  in  rights  of  property,  com- 
panies, endowments,  etc.  ;  it  can  more  be  depended  on 
for  those  which  are  to  last  but  a  short  time,  and  which 
disappear  almost  as  soon  as  they  are  done,  for  in  such 
cases  law  is  supported  by  the  powerful  force  of  inertia. 
Organized  force  is  halted  by  the  impossibility  of  re- 
viewing all  past  acts,  by  the  disorder  which  would  ensue 
if  it  should  be  attempted,  by  the  difficulties  which  would 
be  met  with,  and  thus  makes  use  of  such  expressions 
as  limitations  and  the  various  other  bars  to  actions. 
It  thus  accepts  without  question  facts  which  have  been 
accomplished  in  the  past,  though  it  would  not  tolerate 
the  same  thing  at  present,  and  this  has  always  been  so 
except  for  rare  exceptions  in   periods  frankly  revolu- 

15  Pascal  certainly  exaggerated  when  he  said:  "Force  is  easy  to 
recognize  and  indisputable."  This  is  not  wholly,  but  very  largely  true; 
enough  so  for  practical  life,  which  must  be  contented  with  probabilities. 


362  RENÉ   DEMOGUE  [Ch.XII 

tionary.  The  force  of  circumstances,  or  better,  the 
disproportion  between  effort  and  result,  is,  therefore, 
the  strongest  support  of  the  principle  of  the  non-retro- 
activity  of  laws. 

We  have  thus  explained  that  we  have  the  law  in  our 
favor  when  our  interest  has  received  from  an  organized 
force,  or,  if  it  be  preferred,  a  constituted  authority,  a 
guaranty  on  which  it  can  depend  as  lasting. 

§  205.  Force  and  Continuity  the  Chief  Marks  of  Law. 
Force  and  continuity,  with  the  object  of  satisfying  our 
interest,  are  the  principal  elements  which  observation 
discloses  in  positive  law.  This  analysis  differs  somewhat 
from  that  made  by  students  who  are  satisfied  to  analyze 
the  various  sources  of  the  law,  statutes,  regulations, 
custom,  etc.,  but  it  must  be  admitted  to  be  the  only 
practical  analysis.  A  right  is  complete  only  if  it  can  be 
enforced,  and  only  to  the  extent  to  which  it  can  be  en- 
forced. A  credit  which  is  never  to  be  paid,  and  from 
which  no  advantage  in  the  way  of  transfer,  set-off,  etc., 
may  be  expected,  has  no  practical  value  though  it  re- 
presents a  right.  For  a  business  man  or  a  man  of 
sense,  a  right  under  such  conditions  is  a  nullity,  the 
more  so  because  the  juridical  point  of  view  is  not  an 
invention  of  the  mind  for  its  pure  contentment,  intended 
to  procure  Platonic  satisfaction,  like  a  beautiful  thought 
or  a  clever  remark,  but  is  established  for  a  practical 
purpose.  A  right  which  does  not  properly  secure  the 
interest  which  it  was  designed  to  protect,  is  a  mere 
unusable  rusty  weapon,  only  the  shadow  of  a  right. ^^ 
This  expression  we  shall  later  modify  a  trifle,  by  showing 
that  this  right,  although  without  a  direct  practical  effect 

16  Dunan  does  not  go  far  enough  when,  following  Leibnitz,  he  looks 
upon  law  as  a  moral  power,  as  the  power  of  ideas  which  seeks  realization 
in  fact.  He  exaggerates  in  concluding  from  this  true  thought,  that  an 
empirical  philosophy  can  never  find  a  solution  to  the  problem  of  law. 
"Principes  Moraux  du  Droit."  in  RMM  1901,  p.  700. 


§205]  THE   NOTION   OF   LAW  363 

when  it  encounters  a  determined  adversary,  is  not, 
nevertheless,  without  a  certain  practical  value,  sometimes 
effective,  sometimes  unimportant,  as  a  consequence  of 
the  sort  of  mystic  or  unreasoned  respect  which  it  inspires 
and  which  gives  it  an  important  moral  force.  Then, 
however,  its  force  is  no  longer  direct,  but  has  rather  a 
psychological  quality  which  cannot  be  measured. 

Aside  from  this  point  of  view  to  which  we  shall  later 
return,  observation  of  life,  essentially  changeable  as  it 
is,  makes  it  evident  that  an  interest  so  protected  by 
law  that  its  realization  is  certain,  is  extremely  rare,  that 
a  right  has  only  more  or  less  probability  of  practical 
realization,  its  force  is  never  absolute,  but  simply  relative. 
In  many  cases  this  relative  value  is  enough  to  depend 
on  in  current  life. 

It  may  be  thought  that  law,  that  force  durable  in  its 
power,  has  rather  vague  limits,  and  this  is  true.  Clear- 
ness of  ideas  is  more  a  need  of  the  mind  yearning  for 
security  than  a  representation  of  the  complex  realities  of 
life. 

We  must  further  admit  that  business  customs,  tech- 
nical ideas  even,  may  on  certain  sides  be  included  in 
the  law,  thanks  to  the  theory  of  negligence  and  to  the 
legal  consequences  attached  thereto.  I  am  negligent 
if  I  fail  to  take  the  usual  precautions  in  my  shop,  if  I 
do  not  have  the  safety  appliances  which  have  been  in 
use  for  several  years.  I  am  negligent  if  I  do  not  observe 
business  customs,  if  I  do  not  give  the  usual  notifications. 
Law  stops  short  only  of  ill-established  or  purely  social 
customs. 

We  thus  impart  a  certain  lack  of  precision  to  the  law, 
which  should  not,  however,  frighten  us.  Necessities 
of  logic  or  of  instruction  tend  to  make  us  limit  our  notions 
clearly,  but  we  should  never  forget  the  famous  aphorism, 
"natura  non  procedit   per   saltus."     There   is   a  series 


364  RENÉ   DEMOGUE  [Ch.XII 

of  shadings  between  the  "esse"  and  the  "non  esse," 
the  law  is  not  surrounded  and  set  off  by  a  deep  moat.^^ 
The  force  of  opinion,  unorganized  in  the  exact  sense  of 
the  word,  is  subject  to  suggestion  or  leadership  and  is 
thus  sufficiently  organized  to  call  for  a  certain  degree 
of  attention  from  men  of  affairs.  There  is  an  insensible 
transition  from  the  characteristics  of  law  to  their  absence,^^ 
from  the  coercion  of  the  State,  of  the  group,  or  of  the 
family,  to  the  influence  of  a  few  isolated  thinkers. ^^ 

In  any  case  this  presentation  of  the  law  does  not 
make  room  for  the  possibility  of  its  defeat;  it  may  be 
violated,  but  only  to  rise  up  immediately  or  almost  im- 
mediately, and  this  seems  to  us  better  than  hymns  on 
the  beauty  of  law  followed  by  lamentations  over  its 
defeats,  which  from  a  practical  standpoint  give  a  very 
poor  idea  of  its  utility .2" 

§  206.  The  Relations  Between  Law  and  Morality. 
The  law  which  reality  shows  us  thus  covers  indifferently 
deeds  of  the  highest  justice  and  worth  as  well  as  of  the 
blackest  injustice,  the  abolition  of  slavery  as  well  as  all 
legal  murders,  all  legal  robberies,  and  we  reach  con- 
clusions which  do  not  greatly  differ  from  those  of  Hobbes 
in  "Leviathan,"  with  this  distinction,  that  we  do  not 
erect  them  into  theories  of  which  we  approve.^^ 

Men  have  never  been  satisfied  with  this  gloomy  con- 
ception as  drawn  from  experience,  except  when  they 

"  Thus  moral  obligations,  usages  protected  by  the  disciplinary  law, 
praiseworthy  actions  recompensed  by  decorations  or  medals,  touch  the 
intermediate  situation  between  law  and  not-law.  Natural  obligations, 
"leges  imperfectae,"  may  be  here  included. 

18  Compare  the  different  theory  of  Korkimov,  "General  Theory  of 
Law,"  §  11,  whose  objections  to  coercion  do  not  apply  to  our  system 
of  observation. 

1»  Korkunov  expresses  an  analogous  idea,  §  9. 

'0  See  to  the  contrary.  Picard,  loc.  cit.  p.  45. 

2>  Compare  similar  ideas  in  Danten,  "De  la  Nature  des  Choses,"  p.  253. 
We  prefer  to  say  with  Jhering,  but  taking  wholly  the  positive  point  of 
view,  "Law  is  the  political  system  of  force,"  that  is,  of  a  powerful,  far- 
sighted  organization  which  has  learned  from  experience. 


§206]  THE  NOTION  OF  LAW  365 

have  profited  or  hoped  to  profit  from  it;  they  have  al- 
most always  appealed  to  a  higher  ideal  law,  the  "non 
scripta  sed  lata  lex,"  the  law  higher  than  the  laws.^^ 

What  is  this  higher  law?  Is  it  morals?  Not  the  whole 
of  morals,  but  it  is  a  chapter  thereof. 

It  is  not  morals.  There  is  no  need  to  repeat  here 
the  explanation  of  the  difference  between  law  and  morals, 
which  has  become  commonplace,  and  to  show  that  law 
and  morals  are  not  one  and  the  same  thing  and  have  not 
an  equally  wide  domain. 

We  must,  however,  state  that  law  is  that  part  of  morals 
which  seems  to  present  such  an  importance  that  the  social 
forces,  whether  organized  or  not,  must  work  to  achieve 
its  application  as  their  goal.^' 

There  may  be  moral  rules  not  susceptible  of  being 
applied  by  a  resort  to  force,  or  which  for  some  reason 

Î2  See  in  Beudant.  "Le  Droit  Individuel  et  l'État,"  pp.  29  to  32,  the 
authors  who  have  expressed  this  idea  since  Sophocles  and  Plato. 

23  See  in  agreement  5eaM55«Ve,  "Principes  du  Droit,"  p.  65.  See  never- 
theless Rogiiin,  "La  Règle  du  Droit,"  p.  103.  Compare  Izoulet,  "La 
Cité  Moderne,"  p.  456;  Courcelles-Seneuil,  "Préparation  a  l'Étude  du 
Droit,"  pp.  203,  432.  For  another  system  see  Hauriou,  "Science  Sociale 
Traditionnelle,"  p.  159.  In  agreement  with  us,  Jellinek,  "Socialistische 
Bedeutung  des  Rechts,"  p.  52,  and  Charmont,  "La  Renaissance  du 
Droit  Naturel,"  p.  123  [translated  in  §46  ante].  In  opposition,  Tanon, 
"Évolution  du  Droit,"  p.  149,  who  sees  in  the  method  of  its  formation 
as  a  rule  of  conduct,  custom,  or  statute,  the  characteristic  mark  of  law. 
He  seems  to  us  not  to  distinguish  between  custom  and  morals.  Korkunov, 
"General  Theory  of  Law,"  §  6,  defends  another  theory:  the  purpose  of 
morality  is  the  evaluation  of  interests,  that  of  the  law  their  delimitation, 
making  especially  to  show  in  the  law  that  very  important  element, 
security.  If  he  means  to  speak  of  positive  law  and  to  state  a  fact,  he 
is  right,  but  if  he  means  to  fix  an  ideal,  which  is  really  his  object,  this 
seems  to  us  inadmissible,  for  this  delimitation  will  be  made  necessarily 
according  to  an  evaluation.  Later  he  recognizes  this,  but  refuses, 
nevertheless,  to  refer  law  to  morality,  the  very  object  of  some  of  his 
rules  being  to  assure  to  each  individual  the  liberty  of  his  moral  con- 
victions; but  it  may  be  observed  in  answer  to  this  that,  given  the  dis- 
parate character  of  various  opinions,  morals,  a  much  simpler  theory  than 
is  generally  believed,  orders  exactly  the  same  thing,  which  brings  law 
and  morals  together.  Compare  on  the  relation  of  law  to  morals,  the 
ideas,  similar  to  ours,  expressed  hy  Berolzheimer,  loc.  cit.,  vol,  iv,  p.  149, 
and  vol.  ii,  p.  25. 


366  RENÉ   DEMOGUE  [Ch.XII 

apparently  ought  not  to  be  applied  in  that  way.  No  one 
has  ever  thought  of  applying  by  force,  at  least  as  a 
general  thesis,  the  rules  to  be  good  or  kindly,  not  to  be 
lazy  or  not  to  tell  lies,  and  so  forth. 

There  are,  however,  certain  of  these  moral  rules  which, 
it  seems,  must  be  sanctioned  by  force.^*  Thus,  theft, 
rape,  murder,  have  been  generally  treated  by  systems 
of  legislation  as  things  which  they  should  punish.  It 
seems  to  us  incontestable,  almost  naïve,  to  say  that 
it  is  for  reasons  of  utility  alone  —  giving  to  this  word 
its  relative  meaning  of  final  object  —  that  the  enforce- 
ment of  a  part  of  the  rules  of  morals  is  allowed  by  violence 
or  trick,  by  the  complex  machinery  which  assures  the 
setting  of  law  in  motion."^  Morality  is  the  obligation 
of  the  internal  forum,  law  that  of  the  external  forum. 
And  this  power  given  to  the  moral  rule  can  be  explained 
only  by  the  following  up  of  an  end,  a  utility,  a  finality  — 
a  certain  cast  which  it  is  desired  to  give  to  society,  a 
certain  social  order  which  it  is  desired  to  put  into  effect. 
It  may  be  said,  then,  that  it  is  for  a  reason  of  utility, 
of  finality  if  one  prefers,  that  a  part  of  morals  is  execu- 
tory .^^  But  this  statement  only  brings  us  nearer  the 
very  greatest  difficulties. 

The  question  is  as  to  what  foundation  it  is  proper 
to  give  to  ideal  law,  so  far  as  it  can  be  fixed, ^^  or,  if  the 
expression  be  preferred,  to  that  part  of  morals  which  is 
socially  executory,  and  as  to  the  reason  why  this  ideal 

'«  It  is  hard  to  determine  where  the  Hst  stops,  of  these  rules  which 
should  be  applied  by  coercion.     See  Picard,  loc.  cit.  p.  391. 

26  We  use  the  word  utility  to  mean  simply  a  relation,  a  concordance. 
It  is  thus  that  Beudant  very  exactly  analyzed  it,  in  "Le  Droit  Individuel 
et  l'État,"  p.  170. 

20 1  here  make  use  of  this  expression  of  ideal  law,  without  prejudice 
to  the  question  whether  there  is  or  is  not  a  distinct  ideal,  as  the  old 
Law  of  Nature  provided,  or  whether  there  is  not  a  natural  law  with 
a  variable  content,  as  is  to-day  maintained. 

"  Cf.  Jhering,  "Œuvres  Choisies,"  vol.  ii,  p.  196. 


§206]  THE   NOTION  OF   LAW  367 

law  should  exist  and  why  everything  should  not  remain 
in  the  domain  of  pure  morals. 

Let  us  first  settle  the  second  and  easier  point.  As 
soon  as  the  existence  of  organized  societies  is  admitted 
as  a  fact  of  experience  bound  to  exist  in  all  periods,  and 
as  soon  as  it  is  agreed  that  the  existence  of  coordinated 
social  forces  is,  in  a  way,  certain,  so  that  only  in  moments 
of  anarchy  can  it  disappear,  it  is  necessary  to  bow  before 
the  evident  necessities  born  of  the  contact  of  men  with 
one  another,  and  of  the  impossibility  of  not  fixing  the 
limits  of  each  one's  activity.^* 

Does  this  mean,  however,  that  the  best  rules  for  the 
government  of  human  societies  are  to  be  found  purely 
and  simply  in  the  application  of  data  based  on  special 
foundations,  positive  or  supernatural,  which  data  would 
be  morals? 

We  do  not  believe  that  ideal  law  is  thus  dependent  on 
morals;  rather  the  contrary.  Certain  rules  are  moral 
only  because  they  are  part  of  ideal  law,  or  because  they 
are  imposed  by  political  economy  or  social  science. 
Morals,  in  fact,  imposes  respect  for  individual  property, 
and  authorizes  the  use  of  force  in  defense  of  that  right, 
only  because  political  economy  considers  this  institution 
legitimate  and  better  in  its  results  than  any  other  organ- 
ized form.  It  if  were  proved  that  the  collectivist  régime 
were  better  than  that  of  individual  ownership,  and  if 
collectivism  were  ordained,  it  would  be  immoral  to  desire 
to  substitute  for  the  collectivist  régime  the  one  that  is 
to-day  in  force.  Just  so,  if  it  were  decided  possible  and 
preferable  to  have  the  judges  elected  by  the  people, 
it  would  be  immoral  to  wish  to  maintain  the  existing 
system  of  appointment. 

It  is  these  considerations  of  finality  which  should 
govern  the  establishment  of  notions  of  morals,  taking 

"  See  on  this  point  Jhering's  developments,  in  "Law  as  a  Means  to  an 
End"  (French  ed.  by  Meulenaere,  p.  374). 


368  RENÉ   DEMOGUE  [Ch.xii 

the  expression  in  its  widest  sense  and  not  giving  it  an 
exact  meaning  at  present.  Both  in  fixing  such  ends, 
and  in  indicating  the  means  of  attaining  them,  the 
economic  sciences  have  a  large  place. 

§  207.  IdealLaw  {Executory  Morality)  Has  a  Practical 
Use  for  Society.  So  much  being  said,  what  is  the 
practical  utility  in  determining  what  this  ideal  law  is? 
This  utility  is  incontestable  and  appears  from  several 
points  of  view.  The  legislator  may  bring  the  ideal  law 
into  more  or  less  complete  realization,  the  administrative 
service  may  be  inspired  by  it,  and  finally  the  judge, 
in  the  many  cases  in  which  he  is  not  bound  by  an  express 
rule,  may  apply  it.  In  a  more  general  way,  he  will  try 
in  doubtful  cases  to  bend  the  positive,  to  the  rule  of  the 
ideal,  law.  Finally,  this  latter  may  affect  the  public 
mind,  shape  opinion  to  certain  ideas,  accomplish  certain 
reforms. 

Every  idea  expressed  and  spread  abroad  has  consider- 
able repercussions,  far  and  near.  Expressed,  it  acts 
on  the  minds  of  many  persons  who,  without  the  taste 
or  the  time  or  the  intelligence  to  think  out  problems,  are 
satisfied  with  the  ready-made  ideas  which  are  presented 
to  them.  It  then  spreads  in  obedience  to  the  important 
laws  of  imitation  whose  social  importance  is  to-day 
recognized.^*  An  ideal  system  of  law,  a  formulated 
legislative  principle,  are  therefore  force-ideas  of  the 
first  importance. 

We  will  even  add  that  if  the  law  as  we  observe  it  is 
always  somewhat  uncertain,  positive  law,  subjectively 
considered,  through  the  conception  which  everybody 
forms  of  it,  has  great  power.  Laws  are  obeyed  without 
consideration  of  the  many  instances  in  which  they  could 
be  broken  with  impunity.     The  expression  "Law,"  for 

«  See  Tarde,  "Les  Lois  de  l'Imitation";  Hauriou,"  La  Science  Sociale 
Traditionnelle,"  pp.  278ff. 


§207]  THE   NOTION   OF   LAW  369 

our  short-sighted  mentahty,  conjures  up  the  specter 
of  an  irresistible  power  whose  influence  is  increased  by 
the  fact  that  we  bow  before  it.  The  human  mind,  eager 
for  direction,  often  for  quiet,  is  easily  incHned  toward 
submission  ;  so  the  law  is  no  longer  in  need  of  exercising 
force,  but  is  peacefully  obeyed,  consent  succeeding  to 
coercion.  In  this  progress,  which  may  be  slow,  towards 
the  softening  of  social  life,  we  see  an  advance  which  may 
easily  be  taken  for  final. 

On  the  whole  it  is  to  be  desired  that  this  ideal  respect 
for  law,  although  it  rests  at  bottom  on  a  mistake  which 
the  shrewd  do  not  make,  belief  in  the  omnipotence  of  law, 
be  developed  as  far  as  possible  ;  that  it  become  a  sort  of 
religion,  because  of  the  resulting  tranquility  and  economy 
of  social  forces,  for  then  more  profitable  and  more  effec- 
tive action  will  be  possible  in  other  directions. 

Thus  from  this  observation  of  positive  law,  similar 
to  that  which  we  have  just  made  of  ideal  law,  we  allow 
to  the  ideal  force  of  law  its  proper  measure  of  importance 
as  an  educator,  a  force  which  we  seemed  not  to  appreciate 
in  the  preceding  pages  in  which  we  took  solely  the  point 
of  view  of  observation.^" 

§  208.  The  Method  of  Establishing  this  Ideal  Law. 
Having  shown  the  interest  attaching  to  the  question, 
we  should  next  consider  the  proper  method  of  answering 
it.  Our  outfit  for  this  purpose  consists  in  the  observation 
of  facts,  the  reasoning  machine  which  alone  merits  the 
appellation  "reason,"  and  a  certain  common  sense,  a 
certain  good  sense  which  the  philosophers  themselves 
decorate  incorrectly  with  the  name  "reason,"  and  which 
is  really  only  a  combination  of  sentiments  whose  motives 
fail  or  escape  us  and  which  we  look  upon  as  certain  in 
spite  of  the  dubious  quality  of  their  proofs. 

«•  SeeBerolzheitner,  "System  der  Rechts-  und  Wirthschaftsphilosophie," 
vol.  iv,  pp.  85ff. 


370  RENÉ   DEMOGUE  [Ch.XII 

We  see  clearly  that,  as  to  the  method  to  follow  in 
determining  a  legislative  or  judical  ideal,  we  must 
abandon  that  "classic  spirit"  which,  since  Taine,  it  is 
superfluous  to  criticize;  that  we  can  no  longer  content 
ourselves  with  a  ludicrous  appeal  to  experience  on  which 
to  formulate  some  principle  which  we  will  then  make 
our  "open  sesame"  of  all  law,  a  principle  whose  conse- 
quences must  be  frequently  rejected  or  whose  form  is 
so  vague,  so  uncertain,  that  it  throws  no  safe  light  on 
the  problems  to  be  settled. 

§  209.  The  School  of  Natural  Law.  Nevertheless, 
numberless  systems  have  been  inspired  by  this  defective 
method.  First,  the  group  of  systems  of  the  law  of 
nature  which  were  upheld,  especially  in  France,  in  the 
1700s  and  1800s.  Without  undertaking  an  explanation 
of  such  well-known  theories,  let  us  content  ourselves 
by  saying  with  Savigny^^  that  they  undertook  "to  set 
above  positive  law  an  ideal,  normal  law  which  every 
people  might  adopt  in  place  of  their  own  system."  ^^ 

It  cannot  be  doubted,  on  consideration  of  any  system 
developed  from  this  point  of  view,  that  it  could  not  pos- 
sibly be  accepted,  alone  from  the  impossibility  of  apply- 
ing to  every  people,  at  whatever  stage  of  civilization, 
in  whatever  circumstances,  a  ready-made  system  of 
law,  necessarily  a  priori.  We  believe  that,  on  this 
ground,  the  criticism  of  these  theories  of  the  law  of 
nature  by  the  historical  school  are  decisive.^^ 

"  "Droit  Romain,"  French  translation  by  Guenoux,  vol.  i,  p.  50. 

"  This  idea  has  been  advanced  again  in  our  time.  See  Rothe,  "Théorie 
du  Droit  Naturel,"  vol.  i,  pp.  61ff.  For  more  details  on  this  school  see 
Charmant,  "La  Renaissance  du  Droit  Naturel,"  pp.  lOff.  [not  translated 
in  this  volume]. 

"  See,  in  this  sense,  Saleilles,  "École  Historique  et  Droit  Naturel," 
in  RDC  1902,  p.  80;  Courcelles-Seneuil,  "Préparation  à  l'Etude  du 
Droit,"  p.  406;  Beudant.  "Le  Droit  Individual  et  l'État,"  p.  194.  The 
latter  seems  to  us  less  happy  in  the  criticism,  pp.  36ff.,  that  the  Law  of 
Nature  claims  to  indicate  what  should  be  immediately  put  into  positive 
law.     The  trouble  with  this  pretension  is  that  it  is  exaggerated;  but  if 


§210]  THE   NOTION   OF  LAW  371 

§  210.  Other  Doctrines  Lack  Precision.  Ought  we, 
in  default  of  this  point  of  view,  to  accept  one  of  the 
many  systems  which,  while  not  pretending  to  construct 
a  complete  theory  of  an  ideal  body  of  law,  establish 
a  few  principles  which  should  not  be  departed  from; 
either  social  solidarity,  with  Léon  Bourgeois^"*;  the 
idea  of  justice,  with  numerous  jurists;  the  right  of  the 
individual,  with  Beudant;  the  inviolability  of  human 
personality,  with  BoisteP^;  the  notion  that  law  is  liberty 
consecrated  and  regulated  by  duty^^;  or  the  principle 
that  men  in  society  should  be  in  the  best  position  to 
attain  their  ends^''  or  to  do  their  duty?^^  These  prin- 
ciples, to  which  we  shall  return,  seem  to  us  in  themselves 
of  undoubted  value,  because  they  rest  on  certain  senti- 
ments or  ideas;  bnt  the  trouble  comes  not  in  affirming 
them,  but  in  tracing  the  limits  of  their  empire,  in  seeing 
just  how  far  they  can  go  in  the  face  of  opposing  principles 
or  facts.  If  the  two  essential  qualities  of  these  several 
principles,  their  extent  and  their  force,  be  not  determined, 
they  remain  vague  hopes,  unseen  and,  I  venture  to  say, 
dangerous,  for  where  are  the  guaranties  against  that 
terrible  thing,  the  abuse  of  a  good  principle?  ^^     We  may, 

it  were  at  bottom  justified,  it  would  be  better  to  have  a  sure  guide  than 
the  so-called  general,  really  vague  directions  which  are  usually  pre- 
sented. 

The  real  trouble  with  this  theory  of  natural  law  is  that  it  takes  certain 
sentiments  of  the  human  conscience  from  which  it  makes  hasty  deduc- 
tions, without  due  consideration  of  the  facts  to  determine  whether  they 
would  not  show  reasons  which  would  prevent  the  application  of  the 
particular  principle.  On  the  insufficiency  of  these  theories,  see  Tanon, 
"L'Evolution  du  Droit  et  la  Conscience  Sociale,"  pp.  4ff. 

»*  "La  Solidarité." 

s6  "Philosophie  du  Droit,"  vol.  i,  p.  72. 

'^Franck,  "Philosophie  du  Droit  Civil,"  p.  9. 

"  Stammler,  "Lehre  von  dem  Richtigen  Rechte,"  p.  196.  [Later  to  be 
translated  in  this  Series.] 

^^ Beaussire,  "Principes  du  Droit,"  p.  46. 

3'  Compare  as  to  the  relative  value  of  these  various  principles,  Cruet, 
"La  Vie  du  Droit,"  pp.  183ff. 


372  RENÉ   DEMOGUE  [Ch.XII 

in  default  of  this  system,  say  with  PlanioH"  that  the 
law  of  nature  is  made  up  of  a  few  maxims  drawn  from 
equity  and  common  sense,  which  are  compulsory  of 
their  own  nature  on  the  legislator  himself.  They  are 
very  few,  and  are  reduced  to  quite  elementary  notions 
which  it  would  not  be  worth  while  to  formulate  as  legal 
enactments.  These  principles,  however,  human  liberty, 
protection  of  life  and  of  labor,  make  possible  only  un- 
precise  solutions,  and  are  subject  to  continual  objections 
no  less  justifiable  than  themselves.  The  same  criticism 
may  then  be  made  to  this  theory .^^ 

The  same  may  be  said,  but  with  more  reason,  of  those 
who,  with  Deslandres,  think  that  they  have  discovered 
the  principle  of  law  in  respect  for  the  moral  law;  who 
wish  to  set  up  a  certainty  and  present  the  rules  of  law 
as  principles.^^ 

§  211.  The  Historical  School.  Sharply  contrasted 
with  the  doctrine  of  natural  law  is,  as  is  well  known, 
that  of  the  historical  school,  sketched  out  by  Savigny 
in  his  Treatise  on  Roman  Law.  Popular  law,  according 
to  that  school,  is  the  common  basis  of  other  law,  legis- 
lative and  scientific.  Though  sometimes  hidden  under 
them,  it  lives  on  nevertheless.  This  general  law,  on 
which  rest  all  other  laws,  whose  duty  it  is  to  accommodate 
themselves  to  it,  has  assigned  to  it  a  general  object,  that 
which  each  people  is  called  upon  to  realize  in  history. 
The  law-giver  should  keep  this  object  in  view,  con- 
stantly holding  fast  to  it  without  injuring  the  energy 
of  individual  life;  in  so  doing  he  will  best  aid  the  im- 
perceptible action  of  the  popular  spirit.^*     This  theory 

"  "Traité  Elémentaire  de  Droit  Civil,"  vol.  i,  no.  5. 

"  See  Cruet,  "La  Vie  du  Droit,"  p.  189. 

*2  "La  Crise  de  la  Science  Politique  et  le  Problême  de  la  Méthode," 
RDP  vol.  XV,  p.  42L 

<'  See  among  the  ^atest  statements  of  this  theory,  Saleilles,  article  cited 
above;  Tanon,  "L'Evolution  du  Droit  et  la  Conscience  Sociale,"  pp.  Iff.; 


§211]  THE   NOTION   OF   LAW  373 

is  very  similar  to  that  developed  in  about  the  same 
period  by  Hegel,  who,  in  conformity  with  his  pantheistic 
philosophy,  sees  in  the  history  of  the  world  and  the  law 
the  Spirit  of  the  World  freeing  itself  little  by  little;  the 
Spirit  being  incarnate  in  the  history  of  all  great  civilizing 
nations,  both  ancient  and  modern.  In  Hegel  and 
Savigny  there  appears  the  same  respect  for  the  mysterious 
Spirit  which  they  believe  to  be  in  some  way  the  ex- 
planation of  sensible  phenomena.  At  bottom  this 
theory  goes  beyond  a  strong  appeal  to  experience,  it  is 
the  annihilation  of  theory  in  the  face  of  facts,  a  veritable 
renunciation;  and  this  condemns  it. 

§  212.  The  Theory  of  a  Law  of  Nature  with  Variable 
Content.  The  problem  of  a  legislative  ideal  is  being 
at  present  taken  up  in  France  in  a  new  and  very  seductive 
aspect  under  the  auspices  of  Saleilles,  who,  following 
articles  by  Stammler  and  L.  von  Savigny,  has  defended 
the  theory  of  a  law  of  nature  with  variable  content.^* 
After  affirming  that  we  must  always  concern  ourselves 
with  justice  "he  speaks  to  us  of  the  estimate  which, 
under  the  historical  circumstances  of  a  given  period, 
taking  into  account  the  prevailing  social  conditions,  one 
should  form  for  oneself  of  justice"  (p.  105),  and  he  adds 
that  a  judge  may  apply  to  concrete  cases  the  ideas  of 
absolute  justice  which  the  abstract  law  of  nature  might 
have  suggested  to  him,  only  if  his  own  conception  has 
already  found  outside  his  own  conscience  an  objective 
expression  which  yields  a  juridical  imperative,  and  if 
from  experience  he  is  able  to  strengthen  his  own  idea. 
Experience  is  to  be  sought  in  legal  analogy,  the  collective 
legal  consciousness,  and  comparative  law. 

Korkunov,  "General  Theory  of  Law"  [in  this  Series,  §  19];  Charmant, 
op.  cit.  pp.  69ff.  [not  here  translated]. 

"  See  article  by  Saleilles  already  cited  in  note  32  ante.  Compare 
Korkunov,  "General  Theory  of  Law,"  §9;  ^foarez,  "Une  Nouvelle  Con- 
ception des  Etudes  Juridiques,"  p.  188.  In  the  same  sense  as  the  text, 
Charmont,  §  103  ante  ("La  Renaissance  du  Droit  Naturel,"  p.  217). 


374  RENÉ   DEMOGUE  [Ch.XII 

The  resuit  of  these  very  characteristic  passages  is  that 
the  judge  should  adopt,  as  his  legal  ideals,  current  con- 
ceptions as  shown  by  various  means:  public  spirit  of 
the  country,  comparative  law,  and  others. 

How  shall  these  current  conceptions  be  recognized, 
how  shall  we  know  what  is  the  collective  legal  thought, 
the  will  of  the  legislator?  The  consequence  will  be 
justice  estimated  for  a  given  epoch  and  under  given 
conditions.  Though  proclaiming  absolute  j ustice,  Saleilles 
ends  in  a  relative  theory;  to  him  the  ideal  of  an  epoch 
is  a  sufficient  image  of  the  absolute  ideal. 

§  213.  Some  Form  of  Ideal  Law  is  Essential  to  Legal 
Theory.  What  must  we  think  of  these  various  systems? 
We  believe  first  of  all  that  it  is  possible,  that  is  neces- 
sary, that  an  ideal  be  set  above  the  real.^^ 

The  possibility  of  an  ideal  law  higher  than  positive 
law  is  easy  to  understand  in  spite  of  the  many  arguments 
made  against  it.  It  has  been  said  that  the  two  can  hardly 
exist  at  the  same  time.*^  Positive  law,  it  is  said,  draw- 
ing all  its  force  from  its  conformity  to  the  law  of  nature, 
could  not  be  distinguished  from  it,  for  if  they  differed 
positive  law  would  no  longer  be  worthy  of  respect,  and 
the  coexistence  of  differing  legal  regulations  cannot  be 
explained.  This  argument,  which  made  great  trouble 
for  early  writers,  has  no  effect  if  we  note,  with  Jhering, 
that  law  is  formed  only  by  conflict.  This  application 
of  the  universal  opposition  makes  it  natural  that  the 
ideal  law  is  often  not  observed.  The  opposite  has  been 
maintained  only  in  consequence  of  a  false  conception 
of  a  natural  order  of  things  so  powerful  as  to  assure  its 
own  expression  slowly  and  of  necessity,  without  the 
least  shock,  an  idea  which  was  one  of  the  exaggerations 
of  the  historical  school. 

<5  This  appears  on  every  side.     See  G.  Renard,  "Méthode  de  l'Étude 
de  la  Question  Sociale,"  in  Revue  Socialiste,  1897,  vol.  i,  p.  137. 
«•  Compare  Korkunov,  "General  Theory  of  Law,"  §  17. 


§2131  THE  NOTION  OF  LAW  375 

Despite  the  historical  school,  despite  the  importance 
of  the  sociological  school,  which,  in  its  wake,  has  be- 
lieved that  it  could  limit  everything  to  the  study  of  the 
laws  of  evolution,  we  think  that  an  ideal  is  necessary, 
because  there  is  in  human  activity  a  quality  of  the 
conscious  and  the  willed  which  must  be  directed.  To 
deny  this  is  to  put  physical  laws  in  the  same  rank  with 
principles  of  human  action,  and  to  reduce  the  law  to  a 
descriptive  study;  it  is,  furthermore,  to  refuse  to  guide 
the  legislator.'*'  The  result  is  a  serious  confusion,  against 
which  there  is  nowadays  an  inclination  to  protest.'*^ 

§  214.  The  Legal  System  Must  Adapt  itself  to  Actual 
Conditions,  Yet  Must  Also  Seek  an  Ideal.  These  groups 
of  solutions  having  been  indicated,  what  must  be  our 
opinion?  To  begin  with,  it  seems  to  us  that  in  order  to 
determine  upon  a  social  ideal,  we  must  take  into  consider- 
ation conditions  of  fact,^'  either  to  discover  absolute  im- 
possibilities or  to  disclose  the  modifications  which  the 
lapse  of  time,  new  discoveries,  economic  changes,  have 
brought  about  in  apparently  identical  situations.  Justice 
requires  that  the  relations  between  master  and  workman 
should  be  otherwise  ordered  when  the  master  is  only  the 
head  of  a  small  shop,  or  a  mechanic  who  gets  the  help  of 
several  comrades,  and  when  he  is  the  head  of  an  enormous 
industrial  plant.  The  legal  system  should  differ  with  the 
difference  in  degree  and  kind  of  civilization;  it  should 
also  pay  attention  to  economic  situations,  to  psycho- 
logical situations,  to  the  permanent  or  temporary  char- 
acteristics of  each  people  —  whether  it  is  active  or  lazy, 

"  Compare  Levi,  "Per  un  Programma  di  Filosofia  de  Diritto"  (Turin, 
1905),  p.  147. 

*i^Gaston  Richard,  "La  Philosophie  du  Droit  au  point  de  vue  sociolo- 
gique," RP  1906.  vol.  i,  p.  86. 

««  We  adopt  on  this  point  of  view  the  remark  of  Courcelles-Seneuil, 
op.  cit.  p.  207:  "The  source  of  law  is  very  clear,  it  is  the  study  of  social 
science  from  all  sides:  the  study  of  the  natural  inclinations  of  man,  and 
of  the  necessary  consequences  of  the  different  rules  of  law  which  may  be 
introduced,  in  the  life  and  development  of  societies." 


376  RENÉ  DEMOGUE  [Ch.XII 

intelligent,  inclined  to  commerce  or  to  agriculture,  fitted 
for  self-government,  proud  of  its  independence,  or  sub- 
missive to  a  dictatorial  government.^" 

In  other  words,  the  legal  system  in  each  case  should 
be  based  not  only  on  a  few  apparent  considerations,  but 
on  all  the  elements  of  the  problem,  elements  constantly 
varying  with  epoch  and  country.  Evidently  there  is 
ample  room  for  observation  in  every  legal  problem. ^^ 

After  a  place  has  been  made  for  the  change  in  actual 
conditions,  however,  another  remains  which  humanity 
should  devote  to  a  certain  ideal.  Though  this  ideal 
will  ever  be  applied  with  a  degree  of  caution  and  though 
its  influence  will  always  be  narrowly  limited,  it  will 
always  be  present,  its  influence  can  never  be  entirely 
abolished.^^  To  have  believed  the  contrary  was  the 
capital  error  of  the  historical  school,  which  pictured  the 
law  as  an  enormous  river  flowing  in  one  unchangeable 
direction,  and  thus,  so  to  say,  tried  to  replace  the  exag- 
gerated dogmatism  of  the  school  of  the  law  of  nature 
with  a  dogmatic  nothingness." 

§  215.  The  Theory  of  Lévy-Bruhl.  We  feel  the  neces- 
sity of  comparing  these  considerations  with  the  theories 
developed  by  Lévy-Bruhl  in  his  book  "La  Morale  et 
la  Science  des  Mœurs,"  the  more  so  because  we  have 
looked  upon  rational  law  as  a  part  of  morals.^  This 
remarkable  study  teaches  us  that  there  is  not  and  that 
there  cannot  be  a  theoretical  system  of  ethics.  Whether 
combined  with  metaphysics,  or  as  an  inductive  theory 

«0  See  an  enumeration  of  these  various  factors  in  Picard,  *'Le  Droit 
Pur,"  pp.  303ff. 

'1  Ibid.,  p.  219.  Compare  the  bond  between  the  ideal  of  law  and  social 
science,  Tanon,  op.  cit.  p.  42. 

'2  In  agreement,  Beiidant,  op.  cit.  p.  196. 

«»  Compare  Tanon,  op.  cit.  p.  66. 

'*  Connected  with  this  theory  are  the  ideas  of  Durkheim,  "Division 
du  Travail  Social,"  p.  450,  on  the  ethics  of  organized  societies,  and  of 
A.Bayet,  "L'Idée  du  Bien." 


§215]  THE  NOTION  OF  LAW  377 

borrowing  from  science  the  needed  facts,  or  as  establish- 
ing what  ought  to  be  without  troubling  about  what  is, 
ethics  seems  to  Lévy-Bruhl  as  equally  worthless.  He 
blames  it  for  depending  on  two  postulates,  the  funda- 
mental identity  of  men,  and  the  harmonious  and  organic 
character  of  the  content  of  the  human  conscience,  of 
which  the  first  does  not  possess  the  quality  which  is 
given  it,  and  the  second  is  an  error,  the  human  conscience 
being  in  a  state  of  gradual  evolution. 

Instead,  then,  of  this  system  of  theoretical  ethics,  on 
which  its  proponents  have  tried  to  found  a  system  of 
practical  ethics,  we  must  undertake  a  study  of  the  science 
of  manners.^^  "In  any  society  in  which  he  lives,  in  our 
own,  for  instance,  a  normal  individual  finds  himself 
under  the  sway  of  his  set  of  social  facts,  facts  which  were 
in  existence  before  he  entered  the  society,  and  which  will 
remain  after  he  leaves  it.  He  is  ignorant  of  their  origin 
or  their  structure.  Obligations,  interdictions,  manners, 
laws,  even  usage  and  rules  of  decorum,  he  must  conform 
to  them  all  or  suffer  the  penalty  for  his  refusal."  ^^ 

The  study  of  the  moral  obligations  which  a  society 
imposes  on  its  members  is  the  science  of  manners. 
This  science  will  be  supplemented  by  an  art  of  moral 
reasoning  which  will  make  use  of  a  knowledge  of  the 
laws  of  sociology  and  psychology  for  the  betterment  of 
existing  manners  and  institutions.  This  art  will  develop 
with  the  progress  of  the  sciences  on  which  it  depends, 
perhaps  very  slowly  through  successive  and  partial  dis- 
coveries.    Its  action  on   reality  should   be    "to   effect 

"  ["Manners"  is  the  English  noun  most  readily  interchangeable  with 
the  French  "mœurs"  and  the  Latin  "mores."  Some  writers  have  re- 
sorted to  paraphrases  like  "social  habits"  or  invented  new  terms  like 
"folkways."  It  should  be  remembered,  however,  that  we  possess  a 
good  old  English  word  of  flexible  meaning  which  lends  itself  to  this 
special  use  —  a  use  by  no  means  rare,  and  recognized  in  the  dictionary 
definitions.  —  Transl.J 

6«  P.  192. 


â7g  RENÉ   DEMOGUE  [Ch.XII 

changes  within  the  rather  narrow  limits  within  which  a 
knowledge  of  natural  causation  makes  our  intervention 
possible."  There  will  be  no  pretence  to  a  "universality 
of  law."  ^'  Based  on  a  positive  study  of  social  realities, 
this  art  will  not  hesitate  to  recognize  that  each  society 
has  its  own  morality  as  it  has  its  own  language  or  religion  ; 
and  while  recognizing  that  comparative  study  will  be 
able  to  reveal  what  is  common  to  the  development  of 
the  morality  of  different  societies,  scientific  intervention 
will  not  press  the  same  measures  everywhere.  Taking 
as  known  all  of  the  conditions,  past  and  present,  of  two 
very  different  societies,  such  as  our  own  and  the  Chinese, 
propositions  for  the  improvement  of  one  or  the  other  will 
certainly  not  be  identical. 

§  216.  Morality  Variable,  Like  Ideal  Law.  It  is  a 
pleasure  for  us  to  recognize  the  elements  which  are  com- 
mon to  these  ethical  theories  and  to  our  conception  of 
law.  If  ideal  law  is  only  a  part  of  morals,  it  is  not 
astonishing  that  there  are  theories  common  to  both,  in 
two  regions  so  closely  allied  that  they  are  more  than 
contiguous,  since  they  partly  interpenetrate  —  notably 
this,  that  in  morals,  as  in  ideal  law,  there  is  something 
subordinate  to  times,  places,  and  circumstances,  some- 
thing changeable. ^^  We  are  the  first  to  perceive  that, 
in  morals  as  in  law,  the  rules  to  be  proposed  are,  for  this 
reason,  not  easy  to  indicate.  We  share  no  longer  the 
enthusiasm  of  the  1700s,  when  it  was  believed  that 
the  rational  organization  of  societies  had  been  dis- 
covered all  at  once,  and  we  are  in  full  accord  with  this 
remark  of  Lévy-Bruhl:  "The  art  of  social  reasoning, 
whether  concerned  with  individual  or  collective  action, 
must   be   built   up   from   the   beginning.     It   will   only 

"  p.  279, 

58  Compare,  on  this  point,  E.Faguet,  "En  Lisant  Nietzsche,"  pp.  324ff. 
Likewise  see  Naville,  "Morale  Conditionnelle,"  RP  1906,  vol.  ii,  p.  372. 


§2161  THE   NOTION   OF   LAW  379 

develop  with  the  progress  of  the  sciences  on  which  it  de- 
pends," and  "when  the  social  art  begins  to  draw  practical 
conclusions  from  the  sociological  sciences,  they  will  apply 
in  the  beginning  to  more  or  less  particular  points.  This 
art  will  necessarily  seem  fragmentary  and  incomplete, 
like  our  medicine  and  applied  mechanics  ;  it  will  not  have 
the  character  of  a  finished  and  coherent  whole."  ^^ 

§  217.  Theories  Specially  Concerned  with  the  Con- 
tingent Element  are  Incomplete.  We  think,  nevertheless, 
that  this  theory  shows  a  void  analogous  to  that  of  the 
historical  school,  and  that  it  is  subject  to  a  grave  criti- 
cism, in  spite  of  the  modest  attitude  which  it  now  takes. 
To  establish  an  art  of  moral  reasoning,  the  notion  of 
art  being  relative,  one  must  have  a  definite  end  in 
view,*'"  one  must  return  to  the  central  question  which 
may  be  concealed  but  will  always  exist.  What  is  life 
for;  what  is  its  goal?  Is  there  a  future  life,  a  higher 
life,  or  perhaps  some  other  goal?  We  must  get  into  these 
terrible  problems,  either  frankly  or  surreptitiously 
taking  them  as  settled  in  one  sense  or  another.^^ 

•«  Pp.  257.  260. 

«0  Compare  Korkunov,  "General  Theory  of  Law,"  "Technical  and 
Ethical  Norms,"  §  5,  and  Jhering,  "Law  as  a  Means  to  an  End,"  chap.  i. 
See  Tarde,  "L'Accident  et  le  Rationnel  en  Histoire  chez  Cournot," 
RMM  1905,  p.  346. 

61  We  would  address  the  same  criticism  to  Beloi,  "Etudes  de  Morale 
Positive,"  1907,  p.  608,  when  he  says  that  society  is  an  end  in  itself  and 
that  morals  is  a  "social  technic."  What  are  the  characteristic  qualities 
of  this  society  for  which  we  should  work? 

Furthermore,  not  only  are  other  theories  of  morals  continually  being 
set  forth  (see  Landry,"  La  Morale  Rationnelle,"  1906),  but  that  which 
we  are  criticising  has  been  refuted  by  many  writers.  See  Fouillée,  "La 
Science  des  Mœurs  Remplacera-t-elle  la  Morale?"  Revue  des  Deux 
Mondes,  October  1,  1905,  especially  p.  548,  and  "Doit-on  Fonder  une 
Science  Morale?"  RP  1907,  vol.  ii,  p.  449;  Cantecor,  "La ^Science 
Positive  de  la  Morale,"  RP  1904,  p.  237.  chiefly  p.  391,  and  "Étude  de 
Morale  Positive,"  RMM  1908,  p.  66;  Gaultier,  "L'Indépendence  de  la 
Morale,"  RP,  1908,  vol.  i,  p.  271.  Especially  will  ideas  similar  to  our 
own  be  found  in  the  previously  cited  article  by  Naville,  "Morale  Condi- 
tionnelle," pp.  561fif.  Levy-Bruhl  tried  to  answer  these  objections' by 
showing  that  an  ideal  may  be  uncovered  little  by  little  and  may  vary 


380  RENÉ   DEMOGUE  [Ch.XII 

As  Renan  very  well  observed, "^^  "Beside  the  'fieri' 
we  must  keep  the  'esse';  beside  movement,  the  mover; 
in  the  center  of  the  wheel,  the  rigid  hub."  Likewise 
the  improvement  of  manners  or  of  law  must  be  directed 
towards  a  fixed  object,  or  the  relative  will  not  indicate 
a  relation  with  anything,  which  is  inconceivable. 

Besides,  all  is  not  settled  when  this  question  is  put,  or 
even  looked  upon  as  answered,  which  has  always  haunted 
humanity,  even  against  its  will.  This  goal  of  life, 
what  is  its  worth  with  reference  to  complex  and  variable 
facts?  What  is  the  relative  measure  of  these  two  quan- 
tities? When  should  man,  obedient  to  one  or  perhaps 
several  higher  principles,  resist  the  special  conditions 
which  we  have  discussed?  When  should  he  bow  before 
them?  Are  there  instances  in  which  he  ought  to  be  a 
reformer,  and,  let  us  be  frank,  a  revolutionary? 

§  218.  Theory  of  Technic  of  Rogiiin  and  Picard. 
Some  people  have  thought  that  to  humanity  must  be 
ascribed  stability  in  certain  relations,  and  that  here  was 
to  be  found  an  aspiration  of  the  mind  which  deserved 
consideration.  In  default  of  an  ideal,  they  have  inquired, 
wholly  from  the  technical  point  of  view,  into  the  security 
that  people  demand,  and  have  developed  the  theory  that 
laws  must  obey  certain  rules,  and  must  always  be  run  in 
certain  molds.  This  is  the  tendency  to  which  we  owe 
two  books,  that  of  Roguin  on  "La  Règle  de  Droit"  and 
that  of  Picard  on  "Le  Droit  Pur";  in  these  two  remark- 
able works  occurred  the  first  and  very  modest  mani- 
festation in  favor  of  a  renascence  of  the  law  of  nature. 


with  the  times,  RP  1906,  vol.  ii,  p.  11.  He  thus  himself  brings  the 
ideal  into  the  circle  of  this  study. 

Besides,  all  art  includes  one  or  many  ideals.  So  it  is  with  the  arts  of 
the  beautiful.  If  medicine  were  further  advanced,  it  would  question 
whether  its  object  should  be  a  long  life  with  reasonable  health,  or  per- 
fect health  and  a  shorter  life  if  necessary. 

«  "Dialogues  Philosophiques,"  p.  146. 


§218]  THE   NOTION  OF   LAW  381 

There  was  evidently  an  approach  to  truth  in  their  at- 
tempt—  in  their  notion  that  the  very  idea  of  law  implies 
that  certain  ends  necessarily  pursued  require  certain  rules. 
But  how  inadequate  this  notion  î*^^  Later,  in  our  study 
of  technic,  we  shall  have  occasion  to  show  that  there  is 
something  variable  in  these  technical  rules,  according 
to  the  end  pursued.  These  studies  were  only  the  first 
very  prudent  steps  towards  a  bolder  attempt,  the  defini- 
tion of  a  certain  ideal. 

§  219.  How  Shall  the  Permanent  Goal  of  Humanity 
be  Defined?  How  shall  we  define  this  necessary  ideal, 
whose  application  will  be  more  or  less  wide  according  to 
circumstances,^^  but  whose  importance  will  be  undeni- 
able? Saleilles,  in  the  article  cited,  indicated  that  it  is 
justice,  but  is  this  very  comprehensive  term  enough  to 
solve  clearly  the  obscure  and  complex  problem  which 
is  occupying  us?  Let  us  seek  to  fill  in  the  details  of  the 
sketch  made  in  his  remarkable  study. 

It  must  first  be  noted  that  we  are  quitting  the  land  of 
contingencies  and  are  consciously  seeking  a  permanent 
ideal.  In  fact  the  void  left  by  Montesquieu  in  his 
"Esprit  des  Lois"  consisted  in  speaking  of  justice  as  a 
simple  relation  of  propriety  existing  between  two  things, 
without  putting  into  his  definition  anything  permanent, 
any  abstract  ideal. ^^  This  ideal  to  be  defined,  which 
we  seek  above  the  numberless  complications  of  actual 
facts,  is  the  very  goal  of  life.*^^     It  is  not  that  subjective 

63  Cf.  Jean  Escarra,  "Remarques  sur  le  Droit  Pur,"  RDC  1909,  pp.  111- 
115. 

M  Note  that  this  idea,  that  there  is  an  ideal  of  Justice  capable  of  a 
certain  adaptation  to  circumstances,  is  quite  familiar  to  modern  lawyers. 
See  Aiibry  et  Rauh-i"Droit  Civil,"  vol.  i,  p.  2,  5th  éd.;  Baudry-Lacanti- 
nerie  et  Fourcade,  "Les  Personnes,"  vol.  i,  p.  3;  Fillet,  "Principes  du 
Droit  International  Privé,"  p.  2. 

6s  See  Beudant,  loc.  cit.  p.  114. 

«6  As  Kant  showed  in  his  "Métaphysique  du  Droit,"  in  saying  that 
man  is  an  end  in  himself,  and  in  taking  this  as  the  basis  of  law.  Cf.  Oudot, 
"Essai  de  Philosophie  de  Droit,"  p.  14;  Ahrens,  "Encylopédie  du  Droit," 
P.  119. 


382  RENÉ   DEMOGUE  [Ch.XII 

goal  which  each  one  has  created  for  himself  out  of  his  own 
imagination,  his  own  tastes  and  beliefs.  It  is  the  goal 
of  life  considered  objectively,  a  goal  which  must  exist 
outside  of  ourselves,  and  which  is  so  powerful  that  it 
controls  every  one  ;  a  goal  which  it  is  the  duty  of  every  one 
to  attain  and  to  allow  or  even  to  help  others  to  reach. 

Does  this  objective  goal  exist,  however,  and  if  it  does, 
what  is  it?  For  we  cannot  be  satisfied  by  this  vague 
expression  any  more  than  by  talk  of  the  nature  of  man. 

To  affimi  or  to  deny  its  existence  is  to  express  an 
opinion  on  one  of  the  most  serious,  I  may  even  say  the 
most  serious,  of  the  questions  of  philosophy,  and  to  in- 
dicate its  content  is  to  attack  a  difficulty  which  can 
hardly  be  settled  except  by  intuition.  We  are  outside 
those  questions  which  may  be  grasped  and  explained 
by  observations  of  fact  and  by  reasoning. 

We  can  approach  this  objective  problem  only  through 
our  subjective  ideas,"  let  me  add  through  our  feelings, 
asking  ourselves  whether  a  certain  conception,  from 
which  may  hang  long  chains  of  consequences,  is  in  accord 
with  our  consciences,  that  is,  with  one  of  the  vibrant 
but  most  obscure  parts  of  our  souls.  When  we  apply 
the  sole  and  necessarily  imperfect  method  of  attacking 
this  disturbing  problem,  our  subjective  ideas  being  no 
absolute  criterion  of  objective  truth,  we  see  many  differ- 
ent if  not  contrary  conceptions  strongly  presented  to 
our  attention. '^^ 

"Bierling,  "Juristische  Prinzipienlehre,"  vol.  i,  p.  145,  observes  that 
there  is  both  a  subjective  and  an  objective  element  in  law.  See  De 
Tourtoulon,  "Principes  Philosophiques  de  l'Histoire  du  Droit,"  pp.  I9ff., 
55. 

«8  It  is  not  enough  to  talk  with  Ahrens  of  the  nature  of  the  being  as 
a  basis  for  law  ("Philosophie  du  Droit,"  vol.  i,  p.  101)  or  of  social  utility 
with  VanderEyckeni^'Méthoà&'Pos.itwe  d'Interprétation,"  p.  56).  Is  it 
even  enough  to  say,  with  Jhering,  law  guarantees  the  conditions  of  life 
in  society,  that  is  its  goal?  ("Law  as  a  Means  to  an  End,"  pp.  330ff.) 
Such  conditions  are  the  preservation  of  the  species,  work,  and  legal 
transactions.    Even  here  it  will  be  necessary  to  know  according  to  what 


§219]  THE   NOTION   OF   LAW  383 

Has  life  a  goal  beyond  itself?  Does  humanity  exist 
simply  for  a  higher  Being  on  whom  it  depends  and  to 
whom  it  owes  its  own  existence ?^^  Must  we,  in  default 
of  a  goal,  give  to  life  only  one  direction,  one  line  of  march  : 
is  it  something  which  should  have  in  view  principally  and 
especially  the  development  of  life,  the  increase  of  the 
race?  This  increase  would  then  become  the  object  of  a 
half  superstitious  respect,  as  manifested  even  in  the 
basest  and  most  pitiable  forms  of  humanity,  in  the  insane, 
in  criminals,  in  the  densest  of  intellects,  always  with  the 
doubt  whether  this  respect  is  no  more  than  a  means  to 
another  deeper  end.  Must  we,  in  a  word,  say  with 
Courcelles-Seneuil  that  law,  like  morals,  should  be  ever 
mindful  of  its  supreme  utility  for  the  human  race,  de- 
finable by  those  conditions  which  develop  in  it  the  great- 
est sum  of  human  life?  ""* 

Or  must  we  say  that  the  ultimate  end  of  humanity  is 
to  bring  forth  great  men  ?  ^^  The  great  work  of  humanity 
will  be  accomplished  through  science.  The  essential 
thing  is  to  produce  great  geniuses  and  a  public  able  to 
understand  them.  The  masses  count  for  little,  nature 
does  not  trouble  with  them.  All  should  serve  higher 
ends.  Each  is  happy  in  his  place;  the  élite  of  intelligent 
beings  dominating  the  world  so  as  to  secure  the  reign  of 
the  m.ost  of  reason  possible,  the  goal  of  nature  being  not 
that  all  men  should  see  the  truth,  but  that  it  be  seen 
by  a  few  who  should  hand  down  the  tradition. 

Or  should  one  see  the  goal  of  life  less  in  the  develop- 
ment or  happiness  of  future  generations  than  in  the  hap- 

plan  or  with  what  object  in  view,  life  in  society  should  be  organized. 
This  he  does  not  tell  us. 

•9Z?e  Vareilles- Sommier  es,  "Principes  Fondamentaux  du  Droit," 
pp.   34ff. 

'0  Op.  cit.  p.  424;  compare  "L'Utilité  comme  Principe  de  Morale," 
pp.  371ff. 

"  See  Renan,  "Dialogues  Philosophiques,"  pp.  96ff. 


384  RENÉ   DEMOGUE  [Ch.XII 

piness  of  existing  individuals? '^^  This  means  embracing 
ends  on  a  plane  low  enough  for  the  mass  of  human  beings 
to  profit  by  them.  The  result  would  be  that  humanity 
would  become  "a  degenerate  mob  without  other  desires 
than  to  taste  the  ignoble  pleasures  of  the  vulgar";  at 
most  we  should  merely  try  to  persuade  this  humanity  to 
seek  nobler  aims.  And  will  this  happiness,  differing  in 
particular  cases,  be  an  existence  of  excessive  activity, 
or  a  calm  life  of  mildly  relished  sensations,  —  the  two 
extremes  which  may  explain  the  difference  between  the 
occidental  and  the  oriental  conceptions  of  life?'^ 

Is  liberty  the  ideal  of  society?  ^^  Such  a  doctrine  is 
vague,  for  does  this  liberty  solely  guarantee  to  each 
individual  a  limited  ideal,  or  is  it  a  means  of  exciting  the 
desire  for  an  active  mode  of  life?  Is  it  not,  at  bottom, 
a  doctrine  of  despair,  the  doctrine  of  those  who,  hopeless 
of  pointing  out  a  safe  road  to  humanity,  seek  to  abandon 
the  individual  to  himself  to  the  largest  possible  degree, 
permitting  regulation  only  to  the  extent  of  warding  off 
too  violent  shocks?  '^ 

'«  These  conceptions  of  life  react  at  once  on  morals  and  on  law.  "If 
the  new  morality  corresponds  more  to  the  needs  of  interests  which  are 
more  numerous,  less  particular,  more  extended,  the  old  was  adapted  to 
those  more  durable.  The  extent  of  the  sacrifices  demanded  by  present- 
day  duties  extends  proportionally  much  further  in  space  than  in  time, 
whereas  formerly  they  had  a  utility  narrowly  circumscribed  by  the 
immediate  surroundings  of  the  individual,  but  prolonged  in  a  relatively 
considerable  future.  All  virtues  properly  domestic  and  patriarchal, 
local  and  primitive,  are  privations  undergone  for  the  sake  of  a  single 
family,  it  is  true,  but  for  all  the  posterity  of  that  family.  Modern 
morals,  on  the  contrary,  very  accommodating  in  regard  to  the  vices 
from  which  our  grand-nephews  only  will  have  to  suffer,  blames  severely 
the  faults  which  will  afïect  even  far  distant  contemporaries."  Tarde, 
"Lois  de  l'Imitation,"  p.  388.  The  great  importance  of  these  ideas  is 
apparent  when  they  are  applied  to  grave  problems,  of  alcoholism,  the 
social  evil,  the  marriageable  age,  the  marriage  of  incompetents,  etc. 

"On  the  characteristics  of  western  civilization,  see  Kidd,  "Social  Evolu- 
tion," French  ed.  pp.  117f?. 

'«  This  is  notably  the  tendency  of  those  who,  with  the  old  formal 
theory  of  law,  define  law  as  a  delimitation  of  wills  and  not  of  interests. 
See  Korkunov,  "General  Theory  of  Law,"  pp.  104ff. 

'6  Observe  also  how  hard  it  is,  in  a  general  way,  to  compare  the  value 


§219]  THE   NOTION   OF   LAW  385 

The  value  of  these  varied  conceptions,  and  there  are 
perhaps  many  others,  is  hard  to  estimate  by  our  usual 
methods,  statements  of  fact  and  deductions  therefrom; 
for  we  should  have  to  find  something,  to  begin  with, 
which  cannot  be  found  in  a  certain  order  of  nature  which 
is  not  necessarily  applicable  to  man.  WTiat,  for  example, 
is  proved  by  the  fact  that  solidarity  exists  in  nature, 
which  commands  man  to  conform  to  it  ^ — a  being  of  a 
unique  species,  the  master  of  lower  beings?  Has  he  not, 
rather,  reason  to  depart  from  it,  if,  because  of  this  soli- 
darity, "nature  sacrifices  whole  species  so  that  others 
may  find  their  essential  conditions  of  life?"  '^^  If  nature 
has  such  a  law  why  should  we  not  try  to  limit  it  just  as 
much  as  to  follow  it?  Should  we  not  say  that  "men 
must  be  petted  and  consoled  for  nature's  necessary 
harshness?""  Just  one  thing  would  be  really  con- 
clusive,—  proof  "that  there  is  an  orderly  plan  which  is 
imposed  on  us  and  which  guides  us,"  and  which  we  cannot 
avoid  following;  or  which  corresponds  to  our  ideal,  so 
that  we  should  try  as  far  as  possible  to  realize  it.  But 
we  must  begin  by  establishing  this  ideal.  If  nature,  as 
Renan  remarks,  acted  towards  us  like  an  oriental  poten- 
tate towards  the  Mamelukes  whom  he  employs  for 
mysterious  ends  without  ever  showing  himself  to  them, 
we  could  not  submit  to  play  the  rôle  until  we  had  esti- 
mated what  it  would  be  worth  to  us  to  do  so.  Further- 
more, is  it  easy  to  know  what  is  this  pretended  order  of 
nature,  to  which  it  is  argued  we  must  submit?  As 
Bougie  says,  complete  objectivity  gives  no  principle 
of  choice;  too  many  roads  lie  open  before  us.''^  Facts 
speak  several  languages. 

of  the  diverse  conceptions  in  question.  How  may  we  compare  the 
advantage  of  the  quiet  and  orderly  life  of  a  great  many  with  a  régime 
favoring,  in  a  large  way,  discoveries  which  would  overturn  society  all 
of  a  sudden? 

'6  Renan,  "Dialogues  Philosophiques."  p.  103. 

"  Ibid.,  p.  xvii. 

'8  "Solidarisme,"  p.  H9. 


386  RENÉ   DEMOGUE  [Ch.XII 

In  fact,  sentiment,  a  feeling  which  has  been  developed 
by  several  brief  experiences,  most  frequently  decides  our 
action.  It  is  a  highly  subjective  process  and  we  can  find 
in  it  no  reason  for  imposing  our  ideas  on  others.  It  is 
only  as  the  consequence  of  a  happy  combination  that 
the  same  conception  of  life  may  so  prevail  in  a  certain 
epoch  or  country,  or  in  a  great  number  of  countries, 
that  it  can  serve  as  a  guide  to  the  legislator,  indepen- 
dently of  its  objective  value.  In  such  cases,  it  actually 
directs  him,  which  does  not  necessarily  mean  that  it 
directs  him  in  the  right  course.  It  is  frequently  said 
nowadays  that  law  should  be  guided  by  current  ideas, 
by  the  varying  conditions  which  crop  up;  Picard  says 
that  the  legislator  should  be  simply  the  midwife  of  the 
needs  of  the  nation.''^  But  have  not  just  such  national 
tastes,  just  such  unity  of  desires  in  a  particular  period, 
led  people  to  their  destruction?  Have  not  races  dis- 
appeared because  they  followed  their  racial  tendencies 
to  the  end?  Have  they  not,  by  abuse  of  their  own  ideas, 
dug  their  own  graves?  These  are  the  reasons  why  I 
cannot  accept  the  language  of  Poincaré,  that  what  is 
common  to  several  minds  is  objective  —  which  does  not 
prove  that  it  will  belong  absolutely  to  truth. ^'^ 

There  may  be  happy  periods,  with  perhaps  terrible 
to-morrows,  in  which  appears  what  I  shall  term  a  uni- 
versal subjectivism  developing  an  idea  which  the  legis- 
lator will  share  with  the  public,  as  one  of  that  public  *^  ; 
but  how  rare  are  such  periods!  Humanity,  much  more 
decided  on  its  solutions  of  particular  problems  than  on 
its  general  theories,  as  the  former  are  more  within  the 
reach  of  its  short-sighted  understanding,   is  uncertain 

'9  "Le  Droit  Pur,"  pp.  196,  456. 

8»  This  language  tends  to  confound  objective  truth  and  certain  facts 
admitted  by  general  consent,  which  may  very  well  be  errors,  and  are 
no  more  than  beliefs  of  the  loosest  subjectivism. 

81  "La  Valeur  Objective  de  la  Science,"  RMM  1902,  p.  288. 


§219]  THE   NOTION   OF   LAW  387 

as  to  the  course  which  it  should  pursue.  Opinions 
vary  in  different  individuals,  in  different  moments  in 
the  life  of  the  same  individual,  and  it  is  striking  to  note 
how  many  questions  are  carelessly  settled  because  they 
cannot  be  easily  studied  by  the  usual  methods. 

§  220.  There  is  an  Objective  Meaning  of  Life,  but  it 
can  be  Conceived  only  Subjectively.  What  shall  we  con- 
clude from  all  this  discussion?  We  are  unwilling  to 
think,  though  it  may  be  a  postulate,  that  there  cannot  be 
objectively  a  meaning  in  life.  Such  a  meaning,  however, 
we  can  only  conceive  subjectively,  and  law,  which  is 
nothing  more  than  an  instrument  used  for  various  pur- 
poses, must  concern  itself  with  these  conceptions  which 
are  the  imperfect,  erroneous  image  in  our  minds  of  an 
exterior  truth  of  which  we  shall  never  have  certain 
knowledge.  Every  conception  is  subjective  by  nature, 
from  the  fact  that  it  must  pass  through  a  human  brain. 
It  may  be  limited  to  one  country,  to  one  epoch,  party 
or  class,  to  a  chosen  few,  or  even  to  one  individual. 

What  a  great  difference  there  is  between  the  social 
conceptions  of  a  Hindu  scholar  or  the  imam  of  a  splendid 
crumbling  mosque  in  Persia,  between  conceptions  of  a 
calm,  contemplative  life,  of  a  life  of  beauty,  and  our 
occidental  conceptions  of  activity,  of  social  equality, 
of  luxury,  frequently  brutal,  or  again,  an  American's 
ideas  of  the  strenuous  life?  Here  we  seek  in  vain  a 
common  ideal.  What  a  difference,  too,  in  our  occidental 
temperaments,  between  a  part  of  the  élite  of  France, 
"the  most  idealistic  people  which  ever  existed,"  and 
our  neighbors  across  the  Channel  solely  preoccupied 
with  positive  results,  careless  of  general  ideas,  of  compre- 
hensive views,  of  clarity,  a  people  both  conservative  and 
practical.  Even  in  the  same  country,  how  many  trans- 
formations occur  in  the  ideas  of  a  majority  of  thinkers 
in  the  course  of  the  centuries,  or  of  one  century  alone! 


388  RENÉ   DEMOGUE  [Ch.xII 

Not  only  may  the  course  of  thought  be  changed  by 
important  events  Hke  the  Franco-German  war  of  1870, 
but  it  deviates  of  its  own  accord  Httle  by  little  from  its 
primitive  course.  How  great,  for  instance,  has  been 
the  growth  of  the  idea  of  intervention  in  the  last  twenty- 
five  years! 

Besides,  is  it  easy  to  establish  what  are  the  dominant 
conceptions  in  the  same  country  at  a  particular  time? 
Each  party  has  its  own;  each  profession,  even,  develops 
a  special  conception  of  utility .^^  We  must,  too,  recognize 
that  behind  ideas  is  the  important  force  of  appetites. 
Every  one  wants  to  satisfy  what  may  be  an  enormous 
appetite,  and  how  many  men  are  peculiarly  skillful  in 
adorning  their  special  interests  with  general  conceptions !** 
How  many  decayed  aristocracies,  under  the  pretext  of 
preserving  the  cult  of  ideas  to-day  abandoned,  have 
as  their  real  bond  the  wish  for  a  daily  communion,  in 
spite  of  change,  in  their  own  sort  of  pleasure!  Fre- 
quently, too,  are  not  our  general  ideas  only  our  personal 
desires  with  which,  with  the  best  faith  in  the  world,  we 
freely  endow  humanity,  and  which  we  make  the  center 
of  the  world? 

How  can  we,  in  such  confusion,  in  view  of  such  mobility 
of  ideas  and  conceptions,  successfully  establish  what  is 
the  ideal  law?  It  is  not  enough  to  set  up  a  conception 
of  social  utility  and  call  it  the  only  one  really  worthy, 
for  ideas  are  not  made  objective  by  assertions  alone; 
an  idea  is  not  necessarily  worthy  just  because  I  believe 
in  it.  On  the  contrary,  if  we  wish  to  make  law  adapted 
to  social  needs,  we  must  certainly  go  beyond  material 
considerations,  we  must  consider  ideas.  A  man's 
happiness  does  not  merely  consist  in  bread  to  eat;  the 

82  In  this  sense,,  every  theory  is  good  as  responding  to  the  ideals  of 
some  one  of  its  authors  at  least. 

8»  See  De  Tourloiilon,  "Principes  Philosophiques  du  Droit,"  p.  158. 


§220]  THE   NOTION   OF   LAW  389 

satisfaction  of  his  ideas  may  be  as  dear  to  him  as  that 
of  his  material  needs.  The  Hindu  Brahman  who 
would  risk  his  life  to  keep  an  infidel  from  seeing  the  statue 
of  his  God,  the  monk  who  leaves  his  convent  only  when 
compelled  by  force,  the  man  of  strong  convictions  who 
is  willing  to  injure  his  pecuniary  prospects  by  helping 
to  pass  anti-clerical  measures,  are  all  dominated  by 
the  same  idea, —  all  attach  more  importance  to  the 
satisfaction  of  their  spiritual  than  of  their  material 
desires. 

As  a  practical  consequence  we  may  conclude  that  it  is 
especially  in  the  domain  of  material  needs  that  common 
characteristics  can  be  found  among  men  in  a  given 
country  and  time.  Furthermore,  it  may  be  affirmed, 
without  any  pretense  of  resuscitating  the  old  doctrine 
of  the  law  of  nature,  that  thanks  to  these  material 
necessities  there  is  in  every  country  a  fairly  solid  basis 
for  part  of  the  philosophy  of  law;  at  least  the  end  to  be 
attained  is  quite  clear.  This  is,  of  course,  not  the  whole 
story,  for  many  roads  may  lead  there,  but  let  us  reserve 
the  question  which  is  the  best. 

§  221.  The  Reconciliation  of  Subjective  Conceptions, 
Psychologically  Considered.  To  sum  up,  we  reach  the 
conclusion  that  there  is,  superior  to  the  impelling 
facts,  a  certain  ideal  for  law,  but  that  we  are  never 
sure  that  we  have  discovered  it. 

Understanding  that  we  can  never  be  sure  of  reaching 
an  objectively  true  theory  of  the  meaning  of  life,  we 
should  concern  ourselves  with  the  prevailing  subjective 
conceptions,  since  the  problem  of  ideal  law  must  be 
settled,  and  from  this  point  of  view  every  one  must 
make  up  his  mind  to  something,  at  least  to  the  extent  to 
which  he  contributes  to  form  public  opinion.  We 
cannot,  however,  attach  to  such  conceptions  an  exclu- 
sive importance. 


390  RENÉ   DEMOGUE  [Ch.XII 

We  are  confronted  by  a  problem  which  we  must  solve, 
even  if  we  lack  the  elements  scientifically  necessary  for 
its  solution.  We  must  solve  it  by  stiidy  of  the  human 
mind,  taking  into  account  the  general  psychology  of  man. 

In  the  first  rank  of  the  subjective  conceptions  which 
must  be  taken  into  account  are  the  moral  conceptions, 
good,  evil,  justice,  and  liberty  among  them,  and  also  the 
other  fundamental  ideas  which  we  shall  treat  in  suc- 
ceeding chapters.  By  their  own  definition,  however, 
these  are  limited  and  must  be  considered  in  relation  to 
the  whole  mass  of  social  facts.^  Relative  itself,  our 
conception  of  the  absolute  should  be  reconciled  and  put 
in  touch  with  the  other  relative  elements.  This  alone 
will  not,  however,  settle  the  problem,  for  who  is  to  be 
the  judge  of  the  relative  value  of  the  various  ruling  con- 
ceptions, or  of  the  peculiar  applicability  of  one  or  the 
other  to  a  given  case  or  to  the  elements,  variable  in  their 
nature,  of  the  problem  of  legislation? 

Confronted  by  questions  so  complex,  what  shall  the 
law  do?  One  thing  is  certain.  In  presence  of  very 
diverse  conceptions,  of  impelling  facts,  the  law  is  forced 
to  meet  problems  which  it  may  properly  seek  to  settle 
by  reconciling  divergent  points  of  view.  This  is  already 
a  notable  art  whose  development  seems  to  us  almost 
indefinite,  for  new  problems  are  constantly  presented, 
new  discoveries  being  made  which  we  cannot  foresee  and 
which  tend  to  perfect  it. 

Many  cases,  however,  occur  in  which  certain  elements 
of  the  problem  will  seem,  and  doubtless  will  be,  really 
irreconcilable,  because  they  are  so  numerous  or  because 
they  cannot  be  measured  by  a  common  standard  and 
are  so  dissimilar  that  their  relative  values  cannot  even 

8<  On  this  point  we  agree  with  the  remark  oi  Landry,  "La  Superstition 
des  Principes,"  RMM  1903,  p.  121,  that  principles  have  no  absolute 
value,  but  are  beneficial  to  a  certain  degree  on  account  of  man's  imper- 
fections. 


§221]  THE  NOTION  OF  LAW  391 

be  approximated.  There  is  no  true  science  except  that 
which  involves  quantities  which  have  a  common  standard 
or  are  at  least  approximately  measurable.  The  law  in 
such  cases  can  only  eliminate  certain  elements  and  adapt 
existing  means  to  the  end  or  ends  accepted.  This  limited 
reconciliation,  or  this  adaptation  of  all  things  to  a  single 
end,  is  in  itself  an  important  work  whose  success  is  not 
negligible. 

The  object  which  must  be  sought,  though  in  part  im- 
possible of  realization,  is  the  reconciliation  of  differing 
theories.  Simplification,  through  unity  of  idea  and 
logical  deduction,  is  a  mental  need  which  does  not  com- 
pletely correspond  to  reality,  as  we  clearly  perceive 
when  we  see  the  philosophy  of  law  always  ending  in 
the  defense  of  a  compromise  or  of  an  apparently  simple 
principle  which  hides  a  complexity.  Facts  are  too 
divergent  to  be  bent  to  conform  to  the  nature  and  need 
of  action  of  our  minds. 

§  222.  The  Rôle  of  Compromise:  Tardé' s  Theory  of 
Opposition.  The  very  necessity,  however,  in  which 
we  thus  find  ourselves  of  leaving  out  of  consideration 
certain  elements,  certain  desiderata,  forces  us  to  accept 
solutions  which,  though  qualified  as  better  than  others, 
are  none  the  less  imperfect.  As  the  adversely  affected 
interests  are  often  important,  whether  equal  to  the 
protected  interests  or  not,  and  as  men  recognize  evils 
from  which  they  suffer  more  easily  than  advantages 
from  which  they  profit,  there  results  a  need  of  change. 
This  usually  develops  slowly  at  first  because  of  hostile 
interests,  of  routines  which  it  disturbs,  of  the  force  of 
imitation  which  it  must  combat,  but  it  is  the  beginrfing 
of  an  evolution  which  follows  the  line  of  least  resistance.^^ 
The  result,  however,  is  often  no  more  perfect  than  what 

"  This  is,  naturally,  conditioned  by  many  elements  which  we  cannot 
mention  here.     Compare  Picard,  op.  cit.  p.  303. 


392  RENÉ   DEMOGUE  [Ch.XII 

preceded;  new  movements  spring  up,^^  and  thus  it  is 
that  we  notice  sometimes  a  curious  backward  trend  ,^^ 
though  with  improvements  on  the  past.  For  there  is 
one  thing  susceptible  of  very  prolonged  development: 
the  technic,  the  art  of  reconciling  interests  by  measures 
better  adapted  to  the  end  pursued.  What  an  improve- 
ment do  our  modern  institutions  show,  with  their  de- 
veloping tendency  to  formalism,  over  those  of  the  ancient 
formalism,  of  the  Roman  law  for  instance! 

Evolution  no  longer  appears  to  us  as  of  the  rectilinear 
or  at  least  regular  character,  as  of  the  character  of  a  law 

»'  This  has  been  well  expressed  by  Tanon,  "L'Evolution  du  Droit  et 
la  Conscience  Sociale,"  p.  24. 

"  Tarde,  "L'Opposition  Universelle,"  p.  20L  very  well  says:  "What- 
ever be  the  method  employed  to  suppress  the  conflict  between  beliefs 
and  interests  and  to  establish  an  accord  between  them,  it  almost  always 
happens  [does  it  not  always  happen?]  that  the  resulting  harmony  has 
created  a  new  variety  of  antagonism.  For  the  contradictions  and  dif- 
ferences of  detail,  a  contradiction,  a  difference  in  mass  has  been  sub- 
stituted, which  seeks  settlement,  at  the  risk  of  arousing  still  more  impor- 
tant opposition,  and  so  on  to  the  final  solution.  .  .  .  The  progress  of 
science  reveals  rational  antinomies,  soluble  or  insoluble,  which  previous 
ignorance  had  hidden.  .  .  .  The  question  is  whether  this  change  in 
contradictions  and  differences  has  been  advantageous,  and  whether  it 
may  be  hoped  that  harmony  of  interests  and  minds  will  ever  be  complete; 
whether,  in  other  words,  a  certain  amount  of  untruth  and  error,  of 
dupery  and  sacrifice,  will  not  always  be  needed  for  the  maintenance  of 
social  peace.  When  the  result  of  the  change  is  to  centralize  contradic- 
tion and  difference,  there  is  assuredly  an  advantage.  However  profound 
be  the  mysteries  revealed  by  science  in  its  progress,  however  deep  be 
the  abyss  created  between  schools  of  philosophy  by  new  questions,  in 
which  arguments  on  each  side  are  drawn  from  the  same  scientific 
arsenal,  we  cannot  regret  the  times  of  ignorance  in  which  these  questions 
were  not  raised." 

See  in  agreement,  in  regard  to  contradictions  to-day  appearing  as  fatal, 
but  which  mark  great  philosophical  progress,  Hauriou,  op.  cit.,  pp.  llOff. 

We  agree  in  part  with  these  ideas.  We  think  it  an  exaggeration  to 
affirm  that  progress  always  consists  in  a  centralization  of  contradictions. 
We  believe  that  such  is  scientific  progress,  but  it  is  not  the  path  to  be 
followed  in  practical  life.  Many  conflicts  are  settled  in  practice  only 
because  it  has  been  possible  to  dissimulate  them  by  decentralizing  the 
debate.  So  tolerance  and  urbanity,  themselves  uncertain  in  limits 
and  so  possible  sources  of  conflict,  deconcentrate  certain  conflicts,  chase 
away  certain  contradictions  which  nevertheless  subsist.  The  concen- 
tration of  conflict  is,  then,  neither  necessary  nor  always  to  be  approved 
in  practice. 


§222]  THE   NOTION   OF  LAW  393 

of  destiny,  which  persons  have  tried  to  give  to  it,  but 
as  a  series  of  unfortunate  attempts,  more  or  less  success- 
ful, to  make  conceptions  without  doubt  largely  irreconcil- 
able get  along  together .^^  It  results  from  this  situation 
that  the  movements  of  ideas  can  very  rarely  be  pushed 
to  their  extreme  limit,  because  of  the  opposition  of 
principles  unequal  in  value  to  those  of  which  one  wishes 
to  see  the  triumph  and  which  cannot  be  reduced  to 
nothing.^^  There  are  extreme  positions  which  cannot 
be  attained,  or  are  attained  at  most  for  an  instant  only 
under  exceptional  circumstances,  to  be  promptly  aban- 
doned. It  is  usually  a  great  misfortune  to  push  a 
principle  to  its  logical  end,  as  the  Roman  lawyers  well 
expressed  in  the  sentence,  "Summum  jus  summa  in- 
juria." There  are  extremes  which  it  is  dangerous  to 
reach  ;  the  result  is  reaction  and  disturbance,  a  state  of 
fact  which  is  always  dangerous.  Humanity  is  thus 
required  to  make  compromises  which  limit  the  length 
of  what  I  shall  term  the  oscillations  of  evolution,  which 
will  probably  never  find  its  equilibrium,^"  for  the  reasons 
which  I  have  just  given. ^^     Thus,  while   rejecting   the 

8' As  Tarde  well  says,  "Lois  de  l'Imitation,"  p.  75,  "all  inventions 
are  not  cumulative,  many  are  only  substitutes." 

89  What  Picard,  "Droit  Pur,"  p.  344,  calls  the  parallel  and  normal 
expansion  of  great  social  forces.     Cf,  ibid.,  p.  399. 

">  As  Tarde  remarks,  op.  cit.  p.  79,  equality  is  only  a  transition  between 
two  hierarchies,  as  liberty  is  only  a  passage  between  two  systems  of 
discipline. 

»i  "Summed  up,  all  exterior  realities,  of  physics  or  of  life,  present 
the  same  spectacle  of  infinite,  unrealizable  and  unrealized  ambitions 
which  both  urge  on  and  paralyze  one  another.  What  is  called  the 
fixity,  the  immutability  of  the  laws  of  nature,  the  reality  of  realities, 
is  at  bottom  only  their  powerlessness  to  proceed  further  in  their  truly 
natural  path  and  to  realize  themselves  more  fully.  It  is  the  same  with 
those  fixed  (momentarily  fixed)  social  influences  which  statistics  dis- 
cover, or  pretend  to  discover;  for  social  realities,  ideas  and  needs, 
are  no  less  ambitious  than  other  realities,  and  into  them,  on  the  last 
analysis,  are  resolved  those  social  entities  known  as  manners,  insti- 
tutions, language,  laws,  religion,  science,  industry,  and  art."  Tarde, 
"Lois  de  l'Imitation,"  p.  129.  Compare /zowie^  op.  cit.  p.  647  ("The  great 
problem,  the  synthesis  of  solidarity  and  liberty  —  which  is  but  a 
compromise"). 


394  RENÉ   DEMOGUE  [Ch.XII 

theory  of  the  golden  mean  which  sees  a  perfectly  exact 
answer  for  every  problem  in  a  median  solution,  we  can 
only  say  with  old  Horace,  "Sunt  arti  denique  fines  quos 
ultra  citraque  nequit  consistera  justum."  Seek  mitigated 
solutions,  compromises,  though  but  temporary;  such 
are  the  conclusions  of  this  book,  which,  though  they  may 
be  a  little  vague  are  nevertheless  in  our  opinion  capital. 
The  contradictory  elements  frequently  found  in 
problems  before  us  render  a  satisfactory  solution  often 
impossible,  and  throw  us  into  a  régime  of  concession, 
of  compromise, ^2  in  which  neither  principle  is  too  far  or 
too  plainly  departed  from.^^  Although  not  logically 
derived  from  any  absolute  principle,  this  is  the  only 
possible  régime  ;  but,  open  as  it  is  to  criticism,  it  is  always 
very  fragile.^* 

82  The  need  for  compromises  to  end  social  contradictions  has  been 
well  set  forth  by  Hauriou,  op.  cit.  pp.  114ff.  He  shows  that  we  have 
three  ways  of  escaping  contradictions:  elimination,  synthesis,  and  com- 
promise. This  latter  plays  an  important  rôle,  it  is  met  with  everywhere 
and  in  all  social  institutions.  Compare,  on  the  application  of  the  idea 
of  compromise,  although  the  general  principle  is  not  expressed:  Cruet, 
op.  cit.  p.  302;  Picard,  "Droit  Pur,"  p.  241,  who  says  that  rights  should 
be  made  use  of  with  due  regard  to  society  at  large. 

93  Compare  Mill,  "Logic,"  Book  II. 

9<  So,  with  these  given  circumstances,  we  believe  Tarde' s  theory  quite 
admissible:  that  society  passes  through  periods  of  custom  imitation, 
then  of  fashion  imitation  ("Lois  de  l'Imitation,"  pp.  267ff.),  to  return 
to  an  intermediate  stage;  a  theory  which  Hauriou  has  used,  op.  cit. 
pp.  253ff.,  to  base  an  assertion  that  the  world  passes  through  periods 
of  Middle  Ages  then  of  Renascence,  to  end  in  a  half  Middle  Age,  that  is, 
an  intermediate  condition. 

Social  evolution,  then,  would  resemble  a  series  of  oscillations  gradually 
decreasing  in  swing,  only  we  do  not  believe  that  this  pendulum  can  ever 
find  a  point  of  rest.  As  the  state  reached  will  always  be  unsatisfactory, 
new  movements  will  probably  begin.  Often,  in  fact,  rather  unimportant 
demands  finally  develop  such  a  desire  for  what  was  demanded,  that 
people  will  be  ready  to  overturn  everything  to  gain  that  desire.  Thus 
revolutionary  Syndicalism  arose  from  disputes  as  to  wages.  See  Max 
Leroy,  "Syndicats  et  Services  Publics,"  p.  188.  Then,  from  this  strife, 
develops  another  oscillation  along  a  new  line.  From  this  we  perceive 
the  benefit  of  making  exaggerated  demands,  of  revolutions,  which  put 
into  movement  great  forces  to  produce  small  effects.  Finally  we  must 
not  forget  that  new  elements  crop  up  which  will  deflect  and  perhaps 
accelerate  the  swing  of  the  social  pendulum. 


§223]  THE   NOTION   OF   LAW  395 

§  223.  The  Relativity  of  a  Social  Ideal  Promoted  by 
the  Instinct  of  Imitation  is  our  Refuge  from  Moral  Nihil- 
ism. Such  is  the  future  which  seems  to  be  reserved  for 
the  law.  At  first  sight,  the  difficulties  doubtless  do  not 
appear  as  difficulties,  and  for  two  reasons.  First,  the 
inconveniences  of  a  solution  once  adopted  may  be 
attenuated  by  habit;  the  instinct  of  imitation  causes 
a  certain  solution  to  be  long  considered  as  the  least  evil 
until  an  original  thinker  makes  the  public  see  another, 
which  spreads  through  the  instinct  of  imitation.  Then 
we  say  with  Pascal  :  "Custom  makes  the  whole  of  equity 
solely  because  it  is  received.  This  is  the  mysterious 
foundation  of  its  authority.  He  who  refers  it  to  its 
principle  destroys  it."^^  And  the  tradition  is  promptly 
rejected. 

Secondly,  many  circumstances  in  modern  civilizations 
tend  to  mask  these  difficulties.  The  ease  with  which 
ideas  are  spread  through  newspapers,  books,  schools, 
develops  a  series  of  short-sighted  arguments,  accessible 
to  all,  a  series  of  ideas  looked  upon,  at  least  for  a  time,  as 
invulnerable.  Originalities,  developing  from  differences, 
are  effaced  before  a  flat  and  convenient  uniformity  of 
thought. 

Belief  in  the  absolute  value  of  ideas  favorable  to  the 
continuance  of  this  instable  equilibrium  has  the  further 
advantage  of  corresponding  to  what  is,  especially  in 
our  country,  a  mental  need  —  simpHcity.  The  simpler 
the  argument  the  stronger  its  hold  on  the  intelligence, 
and  consequently  our  minds  incline  to  falsify  reality, 
to  endow  it  with  a  uniformity  which  it  does  not  possess, 
just  as  a  ray  of  colored  light  gives  its  own  color  to  objects 
in  its  path.  They  are  shown  clearly  but  falsely.  Thus 
does  one  often  proceed,  and  he  who  responds  to  this 
appeal  of  our  being  has  the  best  chance  of  pleasing  it. 

95  "Pensées,  ed.  Brunschvicg,  fragment  294. 


396  RENE   DEMOGUE  [Ch.XII 

Add  to  this  the  mental  limitations  or  the  press  of  other 
matters  which  keep  the  majority  from  a  deep  study  of 
problems  whose  solution  may  be  unpleasant.^^  In  spite 
of  that,  the  problems  remain  only  seemingly  settled,  and 
a  very  small  thing,  a  discovery  of  some  sort  which  is 
spread  abroad,  suffices  to  put  them  all  into  question  again. 

Fragile  as  often  are  the  solutions  accepted  or  pro- 
posed, they  keep  us  from  the  nihilism  which  was  the 
mistake  of  the  historical  school  with  respect  to  morals, 
as  it  seems  to  us,  and  from  the  moral  nihilism  of  the 
new  school  which  claims  simply  to  substitute  a  practical 
moral  art  for  ethics.  There  are  differences  from  the  point 
of  view  of  value  in  the  solutions  proposed  ;  some  things 
are  absolutely  false  and  inadmissible  as  not  responding 
to  the  actual  fact,^''  and  the  first  of  them  is  that  mental 
nihilism  thus  expressed  by  an  ingenious  writer,  "If  the 
world  agreed  with  our  philosophy,  the  world  would 
stop."  Our  postulate  is  that  the  world  should  advance, 
and  we  are  not  afraid  to  affirm  it  without  giving  any 
reasons;  the  chain  of  our  reasoning  must  start  from  an 
undemonstrated  postulate. ^^ 

§  224.  The  Quest  of  Universality  ;  a  Criticism  of  Tarde. 
There  are  truths  which  tend  towards  universality,  but 
which  are  hemmed  in,  hmited  by  obstacles,  just  as  the 

08  There  are  many  unfortunates  so  absorbed  in  the  life  of  every  day, 
that  they  have  no  time  to  think,  so  to  speak.  They  are  neuters,  and  as 
such  should  be  as  well  treated  as  possible.  They  are  the  eternal  con- 
quered. 

8'  By  applying  this  idea,  I  would  in  part  settle  the  question  as  to 
whether  rulers  may  violate  the  law  or  whether,  if  they  do,  they  should  in 
fact  or  in  law,  be  punished.  The  affirmative  is  certainly  true  when  a 
potentate  has  acted  for  his  own  good  pleasure,  or  his  object  was  private 
gain.  But  the  situation  is  different,  whatever  be  the  final  decision, 
when  he  has  acted  to  further  a  major  social  interest  and  has  preferred  to 
lose  sight  of  principles  rather  than  to  lose  colonies.  Then  there  is 
among  other  problems  that  very  disturbing  one  of  the  Reason  of  State, 
[raison  d'État].  Anent  these  violations  see,  contra,  E.  Faguet,  "En 
Lisant  Nietzsche,"  p.  333. 

»»  Observe  that  Courcelles-Seneuil,  op.  cit.  p.  378,  has  no  less  distinctly 
asserted  that  all  ethical  principles  are  unproved. 


§224]  THE  NOTION  OF  LAW  397 

cells  in  a  honeycomb  are  modified  in  form  and  extent 
by  neighboring  cells.  But  where  should  this  limit  be, 
how  shall  we  effect  that  combination  of  human  purposes 
which  Jhering  so  properly  demands?^*  This  problem, 
which  is  equally  one  for  law  and  ethics,  is  the  most 
troublesome  existing.  Legal  and  moral  casuistry  has 
worked  on  it  for  centuries,  for  it  has  presented  the  most 
baffling  of  difficulties.  Most  frequently  the  solutions 
suggested  are  all  bad,  as  we  can  see  from  the  fact  that  the 
struggle  between  the  opposing  ideas  is  almost  always  com- 
plex. We  cannot  agree  with  Tarde  ^°°  that,  in  regard 
to  all  the  elementary  facts  of  social  life,  the  opinions  and 
plans  are  always  only  two,  that  if  in  a  battle  there  are 
armies  of  different  nations  there  are  only  two  sides, 
and  that  every  quarrel  reduces  itself  to  a  yes  and  a  no. 
Though  this  may  practically  appear  as  inevitable,  it 
does  not  mean  that  the  manifold  of  ideas  which  enter 
strife  consequently  have  only  two  simple  solutions. 
While  the  facts  may  sometimes  have  this  appearance, 
the  warring  conceptions  rather  resemble  a  crowd  trying 
to  pass  through  a  narrow  passage  where  the  struggles 
between  various  individuals  are  but  incidents  of  a  more 
general  conflict.  If  we  affirm  the  contrary,  we  are  only 
obeying  a  mental  tendency  towards  simplification,  even 
to  the  extent  of  mutilating  and  changing  facts;  we  are 
following  our  inclinations  rather  than  reality. 

Since  it  all  seems  so  complex,  since  different  truths 
are  so  hard,  so  often  impossible,  to  measure  by  any  com- 
mon standard, ^"^  since  even  an  approximate  standard, 
if  discovered,  is  so  hesitatingly  applied,  we  can  easily 
understand  why  it  is  so  dubious  an  undertaking  to  ven- 
ture into  such  a  field,  and  why  Montesquieu  himself  did 

»«  "Law  as  a  Means  to  an  End,"  §  5,  pp.  43ff. 

100  Op.  cit.  p.  168. 

101  See  Bentham,  "The  Principles  of  the  Civil  Code,"  for  a  comparative 
notation  for  these  values. 


398  RENÉ   DEMOGUE  [Ch.XII 

not  dare  to  try  it,  preferring  to  determine  the  conse- 
quences of  various  principles  of  government  without 
comparing  their  merit. ^'^^  For  we  understand  why 
elaborations  of  general  ideas  having  so  fragile  a  basis 
pass  soon  out  of  date.  Let  us  repeat,  however,  that  the 
difhculty,  to  put  it  no  more  strongly,  does  not  suppress 
the  problem. 

§  225.  Ideal  Law  has  Ideas  of  General  Validity.  In 
the  midst  of  these  uncertainties,  we  must,  however, 
call  attention  to  some  points  which  seem  beyond  dis- 
cussion, and  which,  to  a  certain  degree,  will  guide  the 
legislator  and  the  jurisconsult.  There  are  the  general 
ideas  on  the  object  of  life  which  constitute  the  necessary 
basis  of  law,  and  which,  although  their  proof  is  uncertain, 
are  at  least  supported  by  the  opinions  of  a  great  many 
men.  Then  there  is  the  consideration  that,  as  law  is 
made  for  man,  it  will  better  answer  its  purpose  if,  as 
the  idea  of  happiness  becomes  clearer,  rules  are  pro- 
posed in  harmony  with  the  psychology  of  man  in  every 
period,  or  in  a  particular  time  or  country  or  social  rank, 
or  occupation  or  profession  —  if  more  attention  is  paid  to 
facts,  even  to  every  man's  idea  of  happiness,  right 
or  wrong. 

It  is  quite  true  that  human  Hfe,  wherever  it  occurs, 
has  the  same  general,  in  spite  of  the  diversity  of  its 
particular,  characteristics.  Human  law,  however  com- 
plex in  content,  inevitably  shows  certain  general  char- 
acteristics. There  is  a  generality  which  results  from  the 
action  of  general  conditions.^"*  Among  others,  there 
is  the  principle  that  law  should  be  based  on  a  general 
interest,  that  of  being  to  every  one's  advantage  (of  being 
just,  if  you  like,  as  the  term  is  so  vague  that  it  binds 

102  Compare  Charmant,  "La  Renaissance  du  Droit  Naturel,"  p.  35  [not 
translated  in  this  volume]. 

"3  In  this  sense  see  Korkunov,  "General  Theory  of  Law,"  §  14. 


§225]  THE   NOTION   OF   LAW  399 

us  to  nothing),  otherwise  it  would  be  unacceptable  and 
unaccepted. ^"^  This  must  be  admitted,  and  it  shows 
that  even  such  a  man  as  Nietzsche  drew  must  expect  to 
encounter  an  adversary  as  redoubtable  as,  perhaps 
more  redoubtable  than,  himself,  and,  in  consequence, 
must  take  care  to  treat  gently,  to  a  certain  degree,  the 
interests  of  his  future  rival. 

There  is,  in  addition,  a  vast  array  of  solutions  which 
may  be  classed  as  truths  of  various  degrees  and  which 
may  be  conflicting  one  with  another.  Let  us  emphasize 
this  point,  which  needs  explanation. 

Men  have  always  hoped  to  get  a  system  which  could 
not  be  contradicted,  a  sentiment  which  explains  the 
deep  concern  into  which  modern  opinion  was  thrown 
by  the  brilliant  studies  of  Nietzsche  on  the  Will  to  Power, 
in  his  attack  on  contemporary  morals  —  slave  morals, 
he  said,  which  take  from  a  man  "his  noblest  love  of 
himself,  and  the  strength  to  guard  himself."  It  is 
perceived  that  this  theory,  eminently  dangerous  because 
of  the  possibility  of  its  misapplication,  was,  nevertheless, 
that  dominating  great  acts  of  pubhc  policy,  and  that 
it  made  it  necessary  to  offer  contradictory  moralities  a 
modus  vivendi.  This  necessity  is  real,  for  the  practical 
legal  and  moral  art  must  have  as  its  special  province 
the  setting  of  a  limit  to  opposing  conceptions.  Thus 
it  is  necessary  to  bring  into  harmonious  relation,  on  one 
hand,  the  morahty  of  the  governing  elements  which 
subordinates  everything  to  a  certain  consideration  of 
public  interest  and  admits  in  part  the  reason  of  State 
[la  raison  d'État],  and  on  the  other  the  morality  of 
simple  citizens  very  respectful  of  the  rights  of  individuals. 
Evidently,  checks  will  be  frequent  in  this  work,  for, 
as  we  have  seen,  certain  theories  aspire  to  universality 
and  cannot  easily  be  held  within  their  proper  limits. 

»»«  Renan,  "Dialogues  Philosophiques,"  p.  44. 


400  RENÉ   DEMOGUE  [Ch.XII 

The  attempt  should,  however,  be  made,  even  if  it  suc- 
ceeds but  ill,  for  it  is  the  consequence  of  this  first  postu- 
late —  we  must  live,  that  is,  affirm  or  deny  certain  things. 

Therefore,  if  it  seems  to  us  certain  that  there  is  above 
us  a  natural  law,  an  ideal  law  with  variable  content,^"^ 
it  seems  also  to  be  very  hard  to  discover,^^^  as  we  have 
to  explain  something  to  which  we  hardly  have  access. 
For  it  would  be  naïve  to  consider  as  a  critérium  of  truth 
either  a  nearly  general  agreement  in  a  principle,  or  its 
antiquity.  The  paradox  of  to-day  is  often,  though  not 
always,  the  truth  of  to-morrow. 

The  ideal  would  doubtless  be,  as  Tarde  says,  that  each 
distinct  science,  like  modern  astronomy,  be  reducible 
to  a  single  formula,  and  that  there  be,  as  a  bond  between 
these  different  formulas,  a  higher  formula  —  that,  in 
a  word,  there  be  no  more  sciences,  but  only  Science.^" 
We  are  as  yet  far  from  this  ideal. 

§  226.  The  Never-Ending  Struggle  of  Motives  Forces 
us  to  Deal  Empirically  with  Ideal  Law.  In  this  state  of 
affairs,  what  results?  Law  can  only  be  satisfactory  on 
the  condition  of  responding  not  only  to  every  one's  real 
needs,  or  objective  advantage,  but  also  to  what  he  thinks 
of  as  his  tastes.^°^  Like  the  wife  of  Sganarelle,  certain 
people  like  to  be  beaten,  as  others  enjoy  "licking  the 
policeman,"  even  if  they  have  to  pay  for  it.  Sages 
will  say  in  vain  that  this  is  absurd,  that  we  should  have 
other  tastes;  it  is  the  fact,  and  unlike  Royer-Collard, 
there  is  nothing  in  the  world  which  I  hold  in  as  much 

106  Compare,  in  the  same  sense,  Charmont,  op.  cit.  p.  217  [§  103  in  this 
volume]. 

106  Perhaps  the  mistake  of  Positivism,  after  affirming  the  existence 
of  the  unknowable,  was  to  believe  that  there  are  no  practical  conse- 
quences to  be  drawn  from  this  fact.  Cf.  Tarde,  "L'Opposition  Universelle, 
p.  276. 

10'  "Lois  de  l'Imitation,"  p.  193. 

ii^  Cour  celles -Senenil,  "Préparation  à  l'Etude  du  Droit,"  appendix  iii, 
p.  396,  has  already  indicated  this  idea. 


§226]  THE   NOTION   OF   LAW  401 

esteem  as  a  fact,  the  more  so  if  it  be  important.  Never- 
theless, are  there  not  cases  of  people  who  must  be  helped 
in  spite  of  themselves;  when  a  nation  has  tastes  which 
are  leading  it  to  its  fall,  must  they  not  be  blocked? 

The  ideal  law  which  legislators  and  judges  are  asked 
to  put  into  force  will  necessarily  be  imperfect,  for  if  a 
conception  which  is  believed  to  be  good  is  imposed  on 
every  one,  no  matter  whether  it  be  that  of  the  majority 
or  of  the  minority,  some  sentiments,  some  tastes  will  be 
offended.  Even  if  these  are  exceptional,  they  are  re- 
spectable to  a  certain  degree,  and  why  in  general  should 
people  be  benefitted  against  their  wills?  It  will  be  said 
that  the  State  is  inspired  by  an  objective  utility.  So 
it  is  believed  at  the  time,  but  may  not  the  utility  later 
appear  to  have  been  an  illusion?  For  centuries  the  State 
believed  that  its  duty  was  to  maintain  slavery;  for 
no  less  a  period  it  believed  that  it  was  of  the  first  import- 
ance to  uphold  the  unity  of  religion.  Torture  was  once 
looked  upon  as  an  essential  instrument  in  the  discovery 
of  truth.  Errors  of  the  past  are  easy  to  point  out; 
will  not  ours  be  shown  in  the  future? 

Or  the  State  says,  "My  word  is  law."  Such  arbitrary 
action  is  exactly  as  just  or  as  unjust,  depending  on  the 
point  of  view  of  the  observer,  as  a  State  religion  or  an 
official  school  of  art.     The  consequences  are  the  same. 

Or,  shall  the  organized  forces  assure  to  each  individual 
the  freedom  to  apply  his  own  theories,  to  follow  his  own 
tastes,  religious  or  atheistical,  egoistic  or  charitable, 
artistic  or  scientific?  This  would  be  a  convenient  system 
which  would  satisfy  everybody,  unless  there  occur  among 
the  various  theories  in  presence  what  I  will  call  systems 
of  authority,  that  is,  such  as  impose  one  requirement 
on  everybody.  How  can  every  one  be  certain  of  having 
what  he  wants  in  the  question  of  trade-unions?  Some 
are  partisans  of  obligatory  membership,  others  of  revo- 


402  RENÉ   DEMOGUE  [Ch.xII 

lutionary  prohibition  of  the  right  to  form  occupational 
groups.  The  result  will  always  be  that  for  some  too 
much  is  allowed,  for  others  too  little;  and  universal 
liberty,  toleration,  neutrality,  whatever  people  may 
wish,  is  an  opinion  just  like  another.  If  it  is  a  better, 
it  is  not  because  it  can  satisfy  everybody,  nor  because 
in  and  by  itself  it  is  ideal.  Liberty  is  in  truth  objectively 
nothing  but  a  doctrine  of  despair  ;  powerless  to  do  better, 
the  State  allows  every  one  to  accomplish  within  a  certain 
sphere  what  he  thinks  best  for  himself  and  others. 
Subjectively,  it  is  a  necessarily  insufficient  tolerance, 
for  it  cannot  fully  content  the  partisans  of  absolutist 
doctrines.  Thus  the  problem  is  at  least  in  part  scien- 
tifically insoluble. 

Solutions  satisfactory  to  one  cannot  help  violating 
the  desires  of  another,  so  we  are  forced  to  use  empirical 
methods^*^^:  to  weaken  opposition  by  creating  a  public 
spirit  in  various  ways  such  as  by  watching  publications 
or  schools^^";  the  end  is  hidden,  the  proposed  solutions 
are  toned  down;  little  by  little  they  are  carried. ^^^ 
This  is  politics  with  its  ruses  and  its  methods  that  are 
so  often  called  immoral. 

It  is  probable  that  this  struggle  will  never  end.  Hu- 
manity will  always  seek  something  other  than  that 
which  it  has.  Institutions,  accepted  for  a  moment,  pass 
out  of  fashion,  men  will  put  aside  what  appear  to  be  even 
the  best  of  them.  Abuses  will  throw  into  relief  their 
bad  sides,  the  good  will  be  less  in  view,  so  that  if  a  modi- 
fication does  not  come  by  legal  means  there  will  be  an 
attempt  at  a  change  by  violence,  which  many  people 
will  approve  if  it  succeed. 

119  Thus  is  established  a  bond  between  law  and  politics,  and  we  may 
say  with  Jhering,  "Law  is  the  well  understood  policy  [Politik]  of  power." 

I'o  Compare  Cour  celle  s -Seneuil,  "Préparation  a  l'Étude  du  Droit,"  p.  96. 

"i  Compare  Dicey,  "Law  and  Public  Opinion  in  England,"  opening 
pages. 


§227]  THE   NOTION   OF   LAW  403 

§  227.  Otir  Postulate  of  an  Ideal  Law  for  Each  State 
of  Society.  Nevertheless,  we  do  not  deny  the  existence 
of  an  ideal  law.  I  would  even  say  a  law  of  nature, 
except  that  that  expression  denotes  a  discarded  theory 
which  was  the  basis  of  an  attempted  ideal  system  of 
law  good  everywhere  and  always.  A  legislative  ideal 
would  seem  to  exist  for  each  social  state,  that  is,  a  state 
of  law  better  than  any  other  or  at  least  states  of  law 
better  than  others.  At  least  this  is  a  postulate  which 
we  must  set  up  if  we  desire  a  reason  for  our  studies. 

Only,  and  this  is  the  new  point  on  which  I  insist,  this 
ideal  state  of  law  in  the  presence  of  certain  social  facts, 
historical,  economic,  and  other,  will  be  always  imperfect, 
for  law  is  created  to  respond  to  actual  needs,  whose 
relative  importance  is  hard  to  establish,  and  also  to 
respond  to  every  one's  taste.  Actual  needs  are  deter- 
mined by  social  science,  unfortunately  still  in  embryo; 
tastes  by  many  elements,  the  extent  of  which  is  hardly 
defined,  by  age,  race,  temperament  (whether  sanguine 
or  lymphatic),  heredity,  imitation,  and  many  unknown 
causes.  Tastes  must,  however,  be  taken  into  con- 
sideration; for  example,  is  not  the  taste  of  certain  per- 
sons for  this  or  that  artistic  manifestation  the  explanation 
of  a  whole  body  of  laws  on  historical  monunents  which 
other  persons  think  unreasonable?  Law,  being  created 
in  every  one's  interest,  that  is,  in  the  general  interest, 
which  is  only  the  sum  of  the  interests  of  individuals, 
must  take  into  account  such  interests,  both  as  they 
objectively  are  and  as  they  seem  to  be.  Ideal  law 
appears,  then,  as  the  final  and  common  result  of  social 
science  and  of  the  aspirations  of  humanity.  It  will 
appear  at  once  objective  and  subjective  —  objective 
in  its  purpose,  general  utility,  but  subjective  as  looking 
to  the  satisfaction  of  human  tastes,  to  the  realization 
of  varied  conceptions  of  life. 


404  RENE   DEMOGUE  [Ch.XII 

This  will  be  possible  only  for  very  short  periods,  and 
very  imperfectly,  through  a  relative  and  momentary- 
union  of  mind,  just  as  the  garden  of  Versailles,  that  living 
contradiction  of  nature,  can  only  be  kept  from  a  return 
to  their  natural  wildness  by  incessant  efforts  of  the 
gardeners. 

§  228.  Can  Actual  Law  Satisfy  the  Mind?  Let  us 
leave  these  necessary  theoretical  studies  for  actual  life. 
Law  as  developed  in  practice,  in  positive  systems  of 
law  and  their  application,  cannot  always  satisfy  the 
mind,  for  it  frequently  appears  as  an  inteUigent  com- 
bination of  force  and  ruse  much  more  redoubtable  than 
that  brutal  force  against  whose  triumphs  philosophers 
so  loudly  declaim. 

Purely  ideal  law,  responding  to  an  objectively  viewed 
general  utility,  and  to  individual  conceptions  of  life,  is 
so  rare,  so  hard  to  reach,  that  we  can  only  infrequently 
even  think  of  attaining  it. 

Nevertheless,  we  should  not  totally  despair.  Hope  is 
a  necessity  of  the  spirit,  just  as  sleep  or  digestion  are 
necessities  of  the  body.  Objecti\-ely,  besides,  we  think 
that  there  is  something  more  worth  doing  than  merely 
chronicling  the  triumph  of  organized  forces.  We  should 
try  to  see,  through  the  veil  of  subjective  self,  with  passion 
eliminated,  on  which  side  is  the  greatest  objective  good 
in  the  existing  social  state.  We  should  try,  too,  to 
accommodate  ourselves  to  the  ideas  of  the  present,  and 
never  forget,  while  we  are  building  up  this  law' at  once 
objective  and  sul^jective  (in  the  sense  we  have  already 
given  to  these  expressions),  that  we  are  never  sure  of 
attaining  objective  truth.  How  many  beliefs  well 
established  at  a  given  time  are  to-day  discredited;  how 
many  discussions  are  embarrassed  by  the  ruins  of  systems 
and  of  theories! 


§228]  THE   NOTION   OF   LAW  405 

We  must  remember,  too,  that  law  as  a  means  of  ad- 
vancing in  the  highest  and  widest  sense  the  general 
interest,  which  is,  finally,  the  interest  of  each  individual, 
really  acts  to  a  certain  degree  against  its  own  object 
when  it  is  compelled  to  use  force  to  compel  obedience, 
or  has  to  cause  suffering. 

Because  of  all  these  circumstances  we  must  be  hesi- 
tating in  our  statements  and  in  many  cases  we  must 
confess  the  weakness  of  our  science.  Is  it  not,  however, 
more  scientific  to  refuse  to  pronounce  judgment  and  to 
be  content  to  fix  the  limits  of  the  known  than  to  pre- 
tend to  govern  the  universe  with  one  or  two  principles? 

Did  not  Pascal,  while  laying  so  much  weight  upon 
justice,  show  how  great  a  risk  is  run  in  attaining  it,  and 
how  much  importance  man  should  give  to  custom  in 
the  lack  of  something  better?  "What  is  the  founda- 
tion stone  of  society?  .  .  .  Justice  it  does  not  know, 
for  surely  if  it  did,  it  would  never  have  established  this 
maxim,  the  most  widely  spread  of  all  among  men,  'Let 
each  man  follow  the  custom  of  his  own  country.'  .  .  . 
As  a  result  of  this  confusion  one  says  that  the  essence 
of  justice  is  the  authority  of  the  legislator,  another  the 
convenience  of  the  sovereign,  another  prevailing  custom, 
and  this  last  is  the  best.  Nothing  is  just  in  itself  through 
reason  alone.  Everything  changes  in  time."  ^^^  A 
little  further  he  adds:  "Just  as  fashion  creates  grace,  it 
creates  justice."  ^^^ 

At  the  same  time  he  saw  the  difficulty  of  seeing  justice 
as  anything  but  appearance.  "Nothing  is  so  faulty 
as  the  laws  which  repair  faults.  Any  one  who  obeys 
them  because  they  are  just,  obeys  his  own  idea  of  justice, 
but  not  the  essence  of  the  law."  He  ended  by  admitting 
that  variable  postulates  must  be  set  up.     "A  man  who 

112  "Pensées,"  Brunschvicg  éd.,  fragm.  294. 
"3  Ibid.,  fragm.  209. 


406  RENÉ   DEMOGUE  [Ch.XII 

cares  to  study  the  reason  for  a  law,  will  find  it  so  weak 
and  so  slight  that  if  he  is  not  accustomed  to  contemplate 
the  prodigy  of  human  imagination,  he  will  wonder  that 
the  lapse  of  a  century  has  endowed  it  with  so  much  pomp 
and  reverence." 

§  229.  The  Tentative  Basis  of  Ideal  Law.  The  estab- 
lishment of  an  ideal  law  seems  possible  so  far  as  there 
are  material  needs  to  be  satisfied,  subject  to  the  question 
whether  this  law  ought  not  to  vary  its  procedure  in 
different  epochs  and  in  different  places,  and  whether,  in 
the  event  of  highly  skillful  care  for  material  needs, 
perfection  would  not  be  reached  to  the  detriment  of 
certain  higher  ideals. 

Further  than  that,  ideal  law  is,  in  theory,  hard  to 
build  up,  as  much  for  objective  as  for  subjective  reasons. 
The  latter  are  grouped  about  a  first  postulate,  duty; 
it  is  every  man's  duty  to  work  for  the  good  of  all.  This 
we  believe  to  be  true,  although  very  few  people  do  their 
duty  as  so  understood.  It  is,  however,  one  of  the  primary 
ideas  which  positive  science,  at  least,  does  not  explain 
for  us,^^^  but  which  must  needs  be  fearlessly  affirmed. 
Moreover,  there  is  no  use  of  a  discussion  with  any  one 
who  does  not  believe  in  duty,  because  there  is  then  no  field 
for  controversy.  This  difficulty  also  presents  itself  with 
regard  to  our  first  affirmation,  that  of  the  existence  of  an 
ideal  law  ;  it  cannot  be  proved.  The  construction  of  this 
higher  law,  in  the  face  of  this  primary  difficulty  of  repos- 
ing on  a  postulate,  involves  other  very  serious  difficulties, 
of  which  two  in  particular  may  be  named. 

First,  the  idea  of  social  duty  may  be  differently  under- 
stood by  different  persons.  The  limit  of  duty  is  uncer- 
tain, and  besides,  its  application  is  apt  to  give  rise  to 
endless  difficulties,  which  are  harder  to  settle  than  to 
discuss  cleverly  or  even  originally.     To    what   extent 

^^*  Site  Bourgeois,  "Solidarité,"  p.  73. 


§229]  THE   NOTION   OF   LAW  407 

is  an  intellectual  or  aesthetic  to  be  preferred  to  a  material 
interest?  How  far  must  present  be  sacrificed  to  future 
interests?  When  there  is  what  is  called  a  general  in- 
terest, which  is  most  often,  in  the  last  analysis,  nothing 
more  than  a  bundle  of  individual  interests  very  weak 
when  taken  separately,  to  what  extent  must  the  interest 
of  one  person  be  preferred  to  it? 

There  are,  however,  some  approximate  certainties. 
Certain  solutions  are  thrown  out  by  almost  all  theories; 
others  are  meeting  places  for  lines  of  deduction  from 
very  different   principles. 

Secondly,  we  must  call  attention  to  the  complications 
resulting  from  the  subjective  character  which  the  ideal 
law  should  have.  The  principle  of  majority  rule  which 
holds  sway  in  democracies  should  not  bring  with  it 
oblivion  to  the  proper  interests  of  minorities.  The 
interest  of  one  innocent  man  is  of  more  importance  than 
that  of  the  mob  which  clamors  to  have  him  declared 
guilty.  It  is  always  hazardous  to  do  a  man  good  against 
his  own  will,  even  though  the  advantage  to  him  be 
certain.  On  the  other  hand  it  is  impossible  not  to  stop 
an  individual  who  is  rushing  blindly  to  destruction; 
we  should  then  conclude  in  favor  of  liberty  conceived 
solely  as  a  last  shift.  What  individuals  really  have, 
in  nearly  all  matters,  are  respectable  interests  rather 
than  rights. 

It  is  then  probable  that  the  world  will  continue  to  be 
buffeted  about  by  theories  all  equally  uncertain.  It 
will  obtain  relative  quiet  from  imitation  and  indifference, 
but  one  exterior  circumstance  will  be  enough  to  change 
everything. 

§  230.  The  Limitations  of  Technic  as  a  Recipe  for  Law. 
What  field  is  left  for  the  study  of  law  to  cultivate  away 
from  those  moving  sands;  what  is  its  domain  outside 


408  RENÉ   DEMOGUE  [Ch.XII 

of  these  troublesome  questions  on  which  men  cannot 
make  up  their  minds?  There  is  at  least  one  which  is 
uncontested;  technic,  that  is,  skill  in  adapting  means 
to  determinate  ends.  In  the  arts,  aside  from  the  ques- 
tion what  is  Beauty  —  if  a  rational  Beauty  exists  — 
there  exists  a  vast  realm  of  technic  to  be  studied,  for 
the  adaptation  of  certain  materials  to  certain  effects."^ 
Just  so  in  law  there  exists  a  technic,  of  the  use  of 
the  proper  means  to  accomplish  certain  simple  or  com- 
plex purposes,  with  due  respect  for  other  provision- 
ally acquired  solutions;  a  technic  in  which  Roman 
lawyers  were  marv^elously  successful.  This  art  is  cap- 
able of  development, ^^^  and  its  advantage  becomes  the 
greater  as  it  is  applied  to  matters  farther  away  from  a 
direct  influence  on  and  less  easily  understood  by  the 
common  opinion,  such  as  the  larger  part  of  private  law, 
and  especially  its  theory  of  obligations.  Establishing 
what  are  really  formal  principles,  if  I  may  so  express 
myself,  that  is,  combinations  of  rules  which  are  instru- 
ments adaptable  to  very  different  ends,  the  juridical 
system  of  obligations  can  be  changed  only  with  wise 
deliberation  in  spite  of  its  important  indirect  conse- 
quences. Here,  however,  by  a  sort  of  curious  intellectual 
color-blindness,  the  mass  of  the  public  notices  this  effect 
less  than  elsewhere. 

Progress  in  technic  seems  the  more  possible  because 
inventions  in  its  domain  may  accumulate  almost  in- 
ns In  our  opinion,  there  are  nevertheless  limits  to  this  development. 
This  idea  Tarde  adopts  by  implication.  "True  invention,  invention 
which  deserves  the  name,  becomes  more  difficult  every  day.  ...  It 
will  finally  be  exhausted,  for  no  people  has  capacity  for  unlimited  mental 
development.  Consequently  every  civilization,  European,  Asiatic,  or 
or  any  other,  is  fated  ultimately  to  reach  its  limit  and  begin  turning  in 
an  endless  circle.  But  we  are  yet  far  from  this  point."  Op.  cit.  p.  130. 
"«There  is  this  curious  analogy  between  the  arts  and  law:  that  in 
both  kinds  of  study,  an  almost  indefinite  improvement  in  technic  seems 
possible,  while  a  satisfactory  definition  of  beauty  seems  no  more  prob- 
able than  one  of  ideal  law. 


§230]  THE   NOTION   OF   LAW  409 

definitely.  In  the  domain  of  directory  principles,  on 
the  other  hand,  ideas  cannot  easily  accumulate,  but 
most  often  lend  themselves  to  substitution  ;  in  adopting 
new  ones,  consequently,  one  risks  falling  into  entirely 
erroneous  solutions. 

In  spite  of  this,  we  must  admit  that  ^^"^  principle  has 
a  higher  value  than  technic  and  that  on  the  whole  the 
law  will  appear  particularly  satisfactory  at  a  time  when 
the  abstract  principles  which  dominate  it  have  estab- 
lished a  universal  empire  over  the  minds  of  men.  This 
happy  coincidence  in  the  opinions  of  a  generation  facili- 
tates the  elaboration  of  satisfactory  practical  solutions, 
for  a  technic,  no  matter  how  highly  perfected,  gives  but 
mediocre  results  if  it  be  not  known  for  what  end  it  should 
be  put  into  operation.  Almost  incapable  as  we  are  of 
establishing  scientifically  the  essential  principles  of  law 
and  the  hierarchy  of  needs  to  be  satisfied,  we  should 
consider  it  a  happy  chance  when,  if  only  temporarily 
and  between  two  crises,  a  general  opinion  is  established 
on  these  points. 

I  say  temporarily,  for  these  happy  coincidences  are 
not  long  continued.  As  Tarde  says:  "Though  the  idea 
of  repetition  rules  the  universe,  it  is  not  the  universe,  for 
at  bottom  lies  a  certain  sum  of  innate,  eternal,  indestruc- 
tible variety,  without  which  the  world  would  be  as  flat 
as  it  is  immense.  John  Stuart  Mill  was  led  by  his 
reflections  to  a  similar  postulate."  "^ 

Though  this  rôle  that  technic  plays  in  the  accumu- 
lation of  new  discoveries  seems  important,  it  is  not  for 
that  reason  easy  to  play  in  a  civilization  already  old. 
Life  in  society,  as  has  been  observed, ^^^  ends  inexorably 
in  the  formation  of  an  etiquette,  that  is,  in  a  complete 

"'  See  Tarde.  "Lois  de  l'Imitation,"  pp.  195ff. 
"«Ibid.,  p.  413 
"•Ibid.,  p.  206. 


410  RENÉ   DEMOGUE  [Ch.XII 

triumph  of  conformity  to  rule  over  individual  fantasy. 
Happily,  however,  the  very  complications  which  arise 
from  this  development  make  it  possible  to  make  room 
for  new  inventions,  for  ideas  different  from  the  old,  as 
happened,  for  instance,  when  the  Roman  law  admitted 
the  "jus  gentium." 

§  231.  The  Principle  of  Mass  Action.  The  second 
rule  which  must  be  followed  by  those  who  study  the  law 
and  seek  to  assure  its  domination,  is  that  the  human 
mind  being  such  as  it  is,  principles  of  action  alone  have 
any  hold  on  it.  When  men  are  asked  to  act  not  "ut 
singuli"  but  in  a  mass,  whether  as  a  mob,  as  public 
opinion,  as  voters,  even  as  members  of  a  certain  social 
sphere,  or  of  a  group- — a  labor  union,  a  partnership  — 
they  only  grasp  easily  simple  ideas,  like  liberty,  social 
solidarity,  or  justice.  When  jurists,  then,  wish  to  trans- 
late their  conceptions  into  realities,  they  must  appeal 
to  these  simple  ideas;  the  work  which  has  action  in  viev- 
is  not  of  the  same  nature  as  that  which  has  in  view  the 
discovery  of  truth,  "Nothing  being  more  natural  to  the 
individual  human  being  than  reason,  nothing  being  as 
satisfying  to  the  reasoning  faculty  of  an  individual 
as  a  symmetrical  logical  order  substituted  for  the  mys- 
terious complications  of  life,"  ^-^  practice  should  bend 
to  exigencies,  and  at  times  when  rationalism  rules, 
and  also  individualism  and  fashion  imitation,  it  will 
find  a  field  marvelously  prepared  for  ideas  thus 
presented. 

The  practical  work  thus  accomplished  will  be  useful. 
As  Herbert  Spencer  says:  "An  ideal,  far  in  advance  of 
practicability  though  it  may  be,  in  always  needful,  for 
right  guidance.  If  amid  all  these  compromises  which  the 
safety  of  the  times  necessitates,  or  are  thought  to  neces- 
sitate, there  exist  no  true  conceptions  of  better  or  worse  in 

12»  Ibid.,  p.  369. 


§231]  THE   NOTION   OF   LAW  411 

social  organizations  —  if  nothing  beyond  the  exigencies 
of  the  moment  are  attended  to  and  the  approximately 
best  is  habitually  identified  with  the  ultimately  best  — 
there  cannot  be  any  true  progress."  ^^^  In  what  shall 
this  ideal  consist  if  not  in  simple  principles?  These 
simple  ideas,  worked  out  with  a  view  to  action,  may  be 
in  part  scientifically  exact,  and  in  part  uncertain,  as 
we  have  already  seen.  Nothing  is  more  dangerous 
than  for  them  to  be  followed  to  their  extreme  conse- 
quences ;  in  such  cases  appear  the  terrors  of  a  great  idea 
in  small  brains. 

§  232.  Justice  and  Social  Evolution.  For  this  reason 
we  are  a  trifle,  but  only  a  trifle,  suspicious  of  the  seductive 
principle  established  by  our  eminent  master,  Saleilles, 
whose  ideas  on  this  subject  we  cannot,  to  our  regret, 
adopt:  that  of  taking  as  the  type  of  justice  that  ac- 
cepted in  one's  own  time.^^^  We  fear  that  a  ruling 
principle  will  be  pushed  to  an  excess  if  it  is  too  widely 
applied;  there  is  nothing  more  apt  to  bring  on  revo- 
lution or  reaction  than  the  persistent  logical  application 
of  a  single  principle. ^^^  Perhaps  nations  which  desire 
a  long  life  should  preserve  themselves  in  particular  from 
pushing  their  ideals  too  far;  the  risk  of  a  catastrophe 
would  be  great.  Thus  the  arts  have  fallen  into 
decadence  in  all  countries  through  the  exaggeration  of 
certain  principles  which  had  contributed  to  their  glory, 
and  which  worked  their  destruction  in  the  name  of 
manner  or  style.     In  consequence,  opinion  tires  of  and 

121  "The  Man  versus  the  State,"  combined  with  "Social  Statics"  (Ap- 
pleton,  1899),  p.  417. 

1"  See  also,  on  the  importance  to  be  assigned  to  the  collective  thought, 
E.Levy,  "Exercice  du  Droit  Collectif,"  in  RDC  1903,  pp.  102,  104. 

"3  See  on  this  point  the  very  successful  study  of  Meynial,  "La  Logique 
dans  la  Formation  du  Droit,"  in  RMM  1908,  pp.  181,  186.  See  also 
Jhering,  "Etudes  Complémentaires  de  l'Esprit  du  Droit  Romain,"  pp. 
388-9.  [For  the  latter  work,  a  French  edition  of  Jhering  s  miscellaneous 
writings  translated  by  De  Meulenaere,  see  "Law  as  a  Means  to  an  End," 
in  this  Series,  p.  455,  footnote. —  Ed.] 


412  RENÉ   DEMOGUE  [Ch.XII 

becomes  disgusted  with  institutions  which  have  for  a 
long  time  appHed  the  same  principles  and  have  pushed 
them  to  their  last  consequences. ^^^  It  is  to  be  hoped, 
then,  that  these  extreme  situations  will  not  too  often 
occur;  but  it  is  proper  to  remark  that,  according  to  the 
old  saying  of  Horace,  there  are  limits  beyond  which 
cannot  be  found  the  good  and  the  just.  This  is  a  point 
which  must  not  here  be  forgotten. 

Justice  being  thus  a  thing  of  compromise  and  arrange- 
ment, humanity  will  always  be  subject,  at  certain  times, 
to  outbursts  of  horror  at  its  complexity,  at  these  am- 
biguous situations;  thence  come,  at  times,  those  revo- 
lutionary paroxysms  to  which  nations  are  subject,  which 
lead  them  to  simple  and  extreme  solutions,  but  do  not 
restrain  them  from  making  shortly  afterward  new 
attempts  in  the  system  of  compromises  and  of  composite 
solutions. 

I  do  not,  therefore,  believe  that  all  these  similar  or 
dissimilar  lines  of  social  evolution  will  end  in  a  stable, 
mobile  equilibrium. ^^^  Such  equilibrium,  even  if  its 
center  of  gravity  is  changing  slowly,  may  be  destroyed 
all  at  once.  This  has  happened  more  than  once  in  the 
past,  and,  as  we  must  conclude,  will  happen  in  the  future. 
It  is  true  that  immediately  after  a  catastrophe  of  this 
sort  the  process  of  evolution  begins  over  again,  heading 
toward  another  apparent  equilibrium;  but  I  believe 
that  the  tangled  threads  of  the  evolutionary  processes 
are  more  complex  than  one  is  likely  to  have  any  concep- 
tion of. 

I  do  not  mean,  however,  that  we  may  not  hope  to 
find  the  oppositions  which  we  have  observed,  ultimately, 
a  form  of  adaptation,  or  its  prelude  —  that  we  may  not 

"<  Compare  Hauriou,  "La  Science  Sociale  Traditionnelle,"  p.  23  (on 
the  production  of  crises). 

"6  To  the  contrary,  Tarde,  "Opposition  Universelle,"  p.  332. 


§232]  THE  NOTION  OF  LAW  413 

hope  at  least  to  lessen  the  opposition,  or  even  to  do  away 
with  it  or  to  change  it  into  a  higher  collaboration.  Such 
is  our  hope,  a  principle  of  action  which  we  will  not  reject. 
It  is  axiomatic  that  action  is  superior  to  the  static  state, 
as  being  is  superior  to  non-being. 

§  233.  *' Principles  of  Law''  Sanctioned  by  their  Dy- 
namic Value.  Thus  we  restore  their  proper  place  to  "the 
principles  of  law."  They  are  principles  of  action  which 
are  insisted  on  in  order  to  induce  action  along  certain 
lines;  they  must  be  accepted  and  recommended  because 
of  their  dynamic  value.  It  is,  however,  extremely 
dangerous  to  abuse  them  by  pushing  them  to  extremes; 
one  ruling  principle  would  then  cause  the  rejection  of 
another  equally  reasonable. ^^^  Understanding  this,  we 
can  assign  their  proper  place  to  the  principles  of  tradi- 
tional morals,  which  dominate  at  once  the  law  and  such 
ideas  as  justice  and  respect  for  our  neighbor.  In  part 
these  are  true  principles,  but  their  opposites  are  also 
partly  true;  they  all  represent  general  tendencies.^" 
However,  as  the  principles  of  morals  are  in  contradiction 
with  certain  very  strong  human  tendencies  —  the  desire 
for  pleasure,  to  follow  only  one's  appetites,  not  to  exercise 
self-control  ^ — they  need  to  be  specially  affirmed  and 
to  be  kept  up  to  a  certain  level  through  the  means  used 
for  the  spread  of  ideas.^^^  It  must  be  continually 
repeated  that  a  man  should  not  injure  another, 
although  in  certain  cases  he  must  do  so  to  accomplish  a 
greater  good  (the  rule  of  necessity),  because  the  second 
tendency  is  easier  to  follow.     Thus  we  can  reach  that 

>28  Compare  Cruet,  "La  Vie  du  Droit,"  p.  191;  Picard,  "Le  Droit 
Pur,"  p.  339. 

>"  Paulhan,  "La  Logique  de  la  Contradiction,"  RP  1910,  p.  294. 

128  This  seems  to  us  the  more  essential  because,  as  we  consider  certain 
classes  of  society,  we  are  far  from  sharing  Kenan's  optimism.  He  says: 
"One  thing  is  certain,  that  humanity  will  draw  from  within  itself  all  the 
illusions  needed  to  cause  it  to  do  its  duty  and  to  accomplish  its  destiny." 
"Dialogues  Philosophiques,"  preface,  p.  xix. 


414  RENÉ    DEMOGUE  [Ch.XII 

middle  ground  which  is  all  that  we  can  hope  for  in  this 
world.  ^^® 

Perhaps  we  shall  be  reproached  for  not  having,  in 
consequence  of  these  principles,  established  some  theory, 
some  principle  which  should  dominate  the  whole  law. 
But  that  would  be  only  laying  down  principles  of  action, 
and  we  have  just  expressed  ourselves  as  to  their  value. 
We  prefer  solely  an  exposition  of  the  sad  scientific  truth 
in  this  work  of  pure  science. 

§  234.  The  Opposition  of  Desire  and  Belief.  From 
this  necessity  for  action,  comes  one  of  the  contradictions 
which  confront  us  at  every  step.  As  action  presupposes 
a  simple  principle  which  one  is  forced  to  inculcate,  as 
political  strife  presupposes  war  cries  at  the  same  time 
right  and  wrong,  to  call  together  partisans  for  the  fray, 
it  is  in  practice  usually  necessary  to  represent  morality, 
always  a  little  different  for  different  individuals,  as 
simple  and  universally  the  same,  in  order  to  facilitate  the 
establishment  of  its  empire.  This  is  also  why  one  is 
sometimes  forced  to  represent  public  policy  and  the 
system  of  law,  which  are  essentially  variable,  as  outside 
the  field  of  morals. ^^'^  To  strengthen  the  domination 
of  moral  principles  in  men's  minds,  they  are  represented 
as  sacred,  as  a  reigning  queen,  who  governs,  however, 
only  incompletely.  The  object  is  praiseworthy.  But 
in  fact  we  are  in  a  realm  in  which  what  is  moral  cannot 
always  be  clearly  affirmed.  Those  interested  do  not 
always  see  clearly  w^here  the  good  is;  sometimes,  indeed, 
the  good  is  indiscernible.  This  does  not  mean,  how- 
ever, that  here  no  morality  exists,  but  only  that,  for 
reasons  of  prudence,  it  is  undesirable  to  lead  it  astray. 

129  This  is  an  important  agent  of  progress,  a  point  very  clearly  made 
by  Haurion,  op.  cit.  pp.  206ff. 

130  See  in  agreement,  Faguet,  "En  Lisant  Nietzsche,"  p.  335. 


§234]  THE   NOTION   OF   LAW  415 

Action  and  science  are  in  eternal  opposition.  The  needs 
of  the  spirit  and  real  life,  such  is  the  pitiful  circle  in 
which  humanity  will  always  travel!  It  is  a  source  of 
numberless  contradictions,  and  will  always  cause  laughter 
in  the  superficial  who  think  everything  can  be  settled  by 
logic.  If  they  were  right,  thinkers  of  every  type  would 
be  authorized  to  demand  reforms  and  innovations  in 
the  name  of  logic. 

However,  as  Tarde  said:  "We  must  first  of  all  seek 
out,  define,  and  establish  the  limits  of  the  true  oppo- 
sitions of  desires  and  beliefs;  we  must  observe  the  con- 
ditions in  which  they  occur,  what  are  their  various  classes, 
and  finally  their  known  causes,  if  we  are  to  act  effectively 
on  them."  ^^^  We  do  not  hope  to  accomplish  such  a 
program,  but  we  can  at  least  indicate  certain  of  its 
main  lines. 

§  235.  Practical  Realization  of  Ideal  Law;  Coercion. 
Up  to  this  point  we  have  treated  of  the  bases  of  law,  and 
incidentally  we  have  had  to  touch  somewhat  upon  those 
of  morals.  But  we  have  not  taken  into  account  one 
point  of  the  first  importance,  the  question  of  practical 
realization.  We  have  set  up  a  social  ideal,  but  who 
will  guarantee  that  man  will  conform  to  it?  Some  will, 
because  of  the  tendencies  of  their  characters,  of  education, 
of  heredity;  but  why  should  all  the  various  elements  of 
humanity  unite  on  our  ideal?  How  shall  we  obtain  the 
sacrifice  of  the  individual  will  to  the  non-ego?  ^^^ 

Izoulet,  in  his  "La  Cité  Moderne,"  esteems  that  it  is 
enough  to  enlighten  every  one,  to  show  him  that  the 
interest  of  the  community  is  his  interest,  that  he  cannot 
be  rich  or  happy  unless  society  is  also  rich  and  happy. 

1"  "Opposition  Universelle,"  p.  436. 

122  See  on  the  importance  of  the  sacrifice,  and  on  the  character  of  this 
sacrifice  to  similitudes,  Hauriou,  op.  cit.  p.  181. 


416  RENÉ   DEMOGUE  [Ch.XII 

This  is  to  reason  as  if  each  man  were  eternal,  and  is 
founded  on  that  profound  illusion  which  takes  a  part 
for  the  whole.  For  the  act  which  profits  society  profits 
the  individual  but  little;  the  act  which  profits  greatly 
the  individual  and  harms  society,  only  injures  the  indi- 
vidual very  slightly.  Have  there  not  always  and  every- 
where been  individual  contractors  who  have  robbed  the 
State  or  tried  to  rob  it,  believing  that  their  interest  lay 
rather  in  promoting  the  common  evil  than  in  remaining 
honest?  ^^^  Doubtless,  such  acts,  if  continued,  injure 
everybody,  spread  suspicion  and  corruption  from  which 
all  suffer.  All  this,  however,  comes  later,  and  if  he  who 
was  the  cause  of  this  corruption  is  dead,  and  if  he  only 
had  his  personal  interests  in  view  during  his  life,  he  has 
lived  happy  enough.  The  notion  of  duration,  and  of 
long  duration,  is  therefore  necessary  for  the  conception 
of  a  private  as  strongly  identified  with  a  public  interest. ^^* 
It  is  the  essential  basis  of  morals  and  law,  whether  one 
thinks  only  of  the  earthly  existence  of  the  individual  and 
of  his  family  or  conceives  of  the  eternal  beyond  worldly 
things.  Without  it  morality  has  no  practical  sanction 
for  most  men. 

Only  as  the  result  of  a  highly  intelligent  interest,  then, 
will  an  individual  bend  to  the  interests  of  society,  either 
in  small  things  or  in  the  greatest  of  all,  the  sacrifice  of 
life  itself.  In  many  cases,  at  least,  for  we  must  not 
exaggerate,  such  sacrifices  can  only  be  the  result  of  a 
sort  of  hypnotic  influence  having  in  view  a  definite  object, 
exercised  by  education,  by  exhortation  of  many  kinds, 

»33  Compare  Jhering,  "Law  as  a  Means  to  an  End"  (in  this  Series), 
on  the  hope  that  though  we  violate  the  law  others  will  respect  it  (French 
ed.  p.  304).  [This  and  the  other  references  hereafter  made  by  M. 
Demogue  to  the  "Zweck  im  Recht"  are  to  the  French  translation  by 
De  Meulenaere.  For  the  works  of  Jhering  issued  in  France  see  "Law  as 
a  Means  to  an  End,"  p.  455,  footnote. —  Ed.] 

"<  This  is  what  Jhering  says  in  defining  law  as  the  coalition  of  the 
foresighted  against  those  who  are  not  foresighted  ("Zweck  im  Recht," 
French  ed.  p.  375). 


§235]  THE  NOTION   OF   LAW  417 

that  exerted  by  the  newspapers,  by  example,  by  govern- 
mental authority  and  so  on;  in  a  word,  as  a  result  of 
a  faith  which  displaces  the  center  of  gravity  of  pleasure, 
which  carries  a  man  out  of  himself,  which  makes  him  a 
sort  of  machine,  or  trained  animal.  Faith,  in  this  con- 
nection, does  not  necessarily  have  anything  to  do  with 
religion.  Thus  we  have  the  realization  of  morality, 
dependent  on  belief,  in  the  general  sense  of  the  term,  on 
a  certain  fixity  of  mind,  on  habit,  on  imitation  —  a 
realization  consequently  somewhat  precarious. ^^^ 

Consequently,  it  becomes  necessary  for  the  most  im- 
portant principles  to  be  enforced  by  coercion,  itself  a 
dubious  support,  for  it  is  not  always  possible  to  make  a 
man  act  against  his  will.  Coercion  to  this  external 
defect  joins  an  internal  defect  grave  enough  in  itself; 
it  depends  on  the  strength  of  the  social  ideal  in  the  man 
who  is  making  use  of  it;  so  the  sovereignty  of  law,  as 
well  as  that  of  morals,  is  ever  a  weak  thing. ^^"^ 

§  236.  The  Complexity  of  the  Subject  About  to  be 
Analyzed  Thus  Apparent.  We  have  shown  the  com- 
plexity of  the  problem;  we  shall  now  proceed  to  break 
it  up  into  its  elements,  and  to  examine  the  principal 
tendencies  which  dominate  private  law,  so  that  we  may 
know  how  far  they  are  in  accord,  how  far  in  conflict. 
We  shall  then  show  that  the  rules  of  law  to  be  established, 
if  they  are  to  present  that  coordination  among  them- 
selves which  is  the  peculiar  quality  of  science,  depend 
on  an  important  point,  the  relative  weight  to  be  given 
to  the  principal  tendencies  which  the  legal  system  must 
take  into  account. 

I'B  The  more  so  as  he  who  solely  seeks  to  realize  the  social  ideal,  runs 
the  risk  of  being  deceived  by  dishonest  men  (see  Charmonl,  §  62  ante; 
"Renaissance  du  Droit  Naturel,"  p.  146),  and  then  the  ideal  is  reduced 
to  this  desirable  but  not  always  possible  compromise,  to  be  just  and 
yet  not  be  duped.     So  the  ideal  of  law  is  often  unrealizable. 

1"  The  more  so  because  law,  in  appealing  to  force,  runs  counter  to  its 
own  object, 'if  that  be  to  satisfy  every  one,  for  it  then  admits  its  partial 
powerlessness. 


418  RENE   DEMOGUE  [Ch.XIII 


CHAPTER  XIII 
SECURITY 

IMPORTANCE  OF  THE  IDEA  OF  SECURITY  —  OTHER 
INTERPRETATIONS  OF  SECURITY  —  THE  INFLUENCE  OF 
THE  IDEA  SHOWN  IN  THE  PROVISIONS  OF  PRIVATE 
LAW  — HOW  PRIVATE  LAW  SECURES  RIGHTS  FROM  AT- 
TACK BY  THIRD  PARTIES— BURDEN  OF  PROOF  — UNDER 
LYING  MOST  OF  THESE  CONCEPTIONS  OF  PRIVATE  LAW 
IS  THE  AIM  OF  FACILITATING  TRANSACTIONS:  DYN- 
AMIC SECURITY— STATIC  SECURITY  THE  COUNTERPART 
OF  THE  FOREGOING  — THE  PROBLEM  ARISING  FROM 
THE  OPPOSITION  — A  RECONCILIATION  POSSIBLE?  — 
MEANS  OF  MITIGATING  THE  CONFLICT:  (1)  INSURANCE; 
(2)  PUBLICITY  — OTHER  MEANS  OF  SETTLING  THE  CON- 
FLICT: (1)  IN  CASE  OF  BAD  FAITH;  (2)  WHERE  THE 
PARTIES  ARE  IN  GOOD  FAITH.  LIABILITY  FOR  FAULT  — 
SECURITY  VIEWED  IN  A  DIFFERENT  LIGHT:  AS  A  SEN- 
TIMENT—THE SENTIMENT  OF  FALSE  SECURITY  — 
THE  MODERN  SOCIAL  CONCEPTION  OF  THE  POSITION 
TO  BE  SECURED  TO  THE  PROPERTYLESS  —  PSYCHO- 
LOGICAL CONSIDERATIONS:  (1)  DYNAMIC  SECURITY; 
(2)  STATIC  SECURITY  — COMBINING  THE  TWO  FORMS  — 
PERFECT  SECURITY  UNATTAINABLE  AND  UNDESIRABLE. 

§  237.  Importance  of  the  Idea  of  Security.  We  touch 
here  the  most  important  of  the  desiderata  of  social  and 
legal  life,  its  central  motor,  the  need  for  security.^ 

I  In  assigning  such  importance  to  security,  I  do  not  believe  that  I 
exaggerate.  Many  writers  base  law  on  the  idea  of  order,  which  is  the 
most  direct  generator  of  security.     Berolzheimer ,  op.  cit.,  vol.  iv,  p.  113; 


§237]  SECURITY  419 

This  is  one  of  the  interests  which  have  principally 
preoccupied  modern  law-making.  This  idea  of  provid- 
ing for  the  security  of  individuals,  simple  as  it  is,  has 
a  colossal  importance  in  the  law  of  our  days.  It  is  at 
the  base  of  very  important  principles  with  respect  to 
the  sources  of  law,  whether  public  or  private  law. 

John  Stuart  Mill  did  not  exaggerate  when  he  said: 

"Security  no  human  being  can  possibly  do  without;  on  it  we 
depend  for  all  our  immunity  from  evil,  and  for  the  whole  value  of 
all  and  every  good,  beyond  the  passing  moment;  since  nothing  but 
the  gratification  of  the  instant  could  be  of  any  worth  to  us,  if  we 
could  be  deprived  of  everything  the  next  instant  by  whoever  was 
momentarily  stronger  than  ourselves."  ^ 

Is  not  security  at  the  base  of  respect  for  all  theories, 
all  principles,  as  it  is  at  the  base  of  the  need  for  religious 
faith? 

Mill  understood  perfectly  the  bond  linking  this  idea 
with  that  of  absolute  unlimited  rights,  with  that  sort 
of  free  zone,  recognized  by  everybody,  which  is  the  basis 
of  individualism,  and  in  particular  of  the  Declaration 
of  the  Rights  of  Man.     This  he  expresses: 

"This  most  indispensable  of  all  necessaries,  after  physical  nutri- 
ment, cannot  be  had,  unless  the  machinery  for  providing  it  is  kept 
unintermittedly  in  active  play.  Our  notion,  therefore,  of  the  claim 
we  have  on  our  fellow  creatures  to  join  in  making  safe  for  us  the 
very  groundwork  of  our  existence,  gathers  feelings  round  it  so  much 
more  intense  than  those  conceived  in  any  of  the  more  common 
cases  of  utility  that  the  difference  in  degree  (as  is  often  the  case  in 
psychology)  becomes  a  real  difference  in  kind.  The  claim  assumes 
that  character  of  absoluteness,  that  apparent  infinity,  and  incommen- 
surability  with  all  other  considerations,  which  constitute  the  dis- 

and  this  writer  speaks  elsewhere  (p.  89)  of  law  as  an  ordaining  force. 
We  are  here  touching  on  one  of  the  most  characteristic  ideas  of  human 
reason  (see  Montré,  "Cournot  et  la  Reconnaissance  de  Probabilisme  au 
XIXe  Siècle,"  pp.  21  Iff.)  ;  it  is  not  astonishing,  then,  that  it  should  have 
a  large  place  in  the  law,  so  closely  allied  to  psychology. 
2  John  Stuart  Mill,  "Utilitarianism,"  8th  éd..  p.  81. 


420  RENÉ  DEMOGUE  [Ch.XIII 

tinctîon  between  right  and  wrong  and  that  of  ordinary  expediency 
and  inexpediency.  The  feeUngs  concerned  are  so  powerful,  and  we 
count  so  confidently  on  finding  a  responsive  feeling  in  others  (all 
being  alike  interested),  that  ought  and  should  grow  into  must,  and 
recognized  indispensability  becomes  a  moral  necessity,  analogous 
to  physical,  and  often  not  inferior  to  it  in  binding  force. "^ 

Jhering  has  likewise  proclaimed  with  much  sense  the 
importance  of  the  security  of  rights  from  the  moral 
and  economic  point  of  view,  showing  that  neither  wealth 
nor  character  can  develop  where  the  feeling  of  this 
security  does  not  exist.* 

Do  not  the  tendencies  towards  the  replacement  of 
custom,  which  is  often  uncertain,  by  statutes,  towards 
systematic  codification,  proceed  chiefly  from  the  desire 
to  guarantee  security  to  everybody?  The  great  prin- 
ciple of  the  non-retroactivity  of  laws  rests  on  the 
same  ground,  as  does  also  the  effort  towards  uniformity 
of  legislation,  internally  and  even  internationally,  in 
spite  of  the  certain  defects  of  such  uniformity.^  The 
security  of  business  transactions  is  desired  above 
everything  else,  and  can  only  be  attained  through  the 
simplicity  (indeed  relative)  which  comes  from  one  rule 
everywhere  applicable.  Security  is  the  cornerstone  of 
the  great  principles  of  the  drafting  of  laws  enunciated 
by  Montesquieu:  a  style  at  once  concise  and  simple, 
not  lending  itself  to  several  meanings  without  subtlety, 
more  concerned  with  presumptions  of  the  law  than  of 
man,  not  redundant.^    To  it  again  is  due  that  precision 

»  Ibid,  at  same  page. 

*  "Law  as  a  Means  to  an  End,"  in  this  Series  ("Zweck  im  Recht," 
French  ed.  p.  255).  See  also,  on  the  importance  of  security,  Sew^/zam, 
"Principles  of  the  Civil  Code"  [French  éd.],  part  i,  ch.  vii.  Is  it  not 
this  need  for  security  which  makes  a  light  word  a  sort  of  sacrilege  in  a 
book  dealing  with  law,  and  which  accounts  for  the  gravity  characteristic 
of  everything  that  concerns  Justice? 

'See  Montesquieu,  "Esprit  des  Lois,"  livre  29,  ch.  18. 

«Ibid.,  livre  29.  ch.  16. 


§237]  SECURITY  -421 

which  some  authors  look  upon  as  the  special  character- 
istic of  lawJ 

Moreover,  believing  that  security  is  the  only  principle, 
certain  persons  see  in  it  the  essence  of  law,  which,  for 
them,  is  contained  wholly  in  that  idea  of  stability  dear 
to  the  individualist  school.^  In  their  opinion  the  State, 
charged  with  the  duty  of  assuring  the  reign  of  law, 
should  limit  itself  in  order  better  to  accomplish  this 
task.  It  should  be  strong,  but  as  it  cannot  know  and  do 
everything,  it  should  satisfy  itself  by  assuring  stability.^ 

It  is  essentially  for  the  same  reason  that  the  highest 
courts  try  to  give  fixity  to  their  judicial  decisions; 
otherwise  there  would  be  only  a  weak  security,  as  any 
more  or  less  doubtful  question  might  be  decided  in  one 
or  the  other  way  on  the  hazard  of  the  moment.  Security 
is  also  the  strongest  argument  for  the  logical  and  unvary- 
ing interpretation  of  written  law.  If  the  interpretation 
of  statutes  changes  with  the  times,  and  has  to  respond  to 
objective  considerations  often  somewhat  vague,  a  man 
can  never  know  on  what  to  count. ^^ 

§  238.  Other  Interpretations  of  Security.  So  we  come 
logically  to  the  development  of  that  juridical  spirit  so 
finely  analyzed  by  Edouard  Lambert,  which  seeks  to 
harmonize  the  decisions  of  official  authorities,  to  make 
them  meet.^^  To  safeguard  security  in  legal  relations, 
the  routine  of  deductive  interpretation  is  admitted. 
It  must  be  known  in  advance  what  the  judges  will  de- 
cide about  a  contract,  so  that  if  a  new  statute  super- 

'See  Morelli,  "Que  Cosa  sona  le  Liberta  Civile,"  Archivio  Giuridico, 
1899.  i,  p.  52. 

«See  Schatz,  "L'Individualisme  Economique  et  Sociale,"  p.  320,  and 
authors  cited  on  p.  319  {Hume  and  Courcelles-Seneuil) ;  see  also  p.  208 
for  the  ideas  of  Dunoyer. 

•  Ibid.  p.  208. 

««Ibid.  p.  319. 

"  "La  Fonction  Dynamique  de  la  Jurisprudence  et  l'Interprétation 
Sociale  du  Droit,"  Revue  Générale  de  Droit  1904,  pp.  166ff.,  451ff. 


422  RENÉ   DEMOGUE  [Ch.XIII 

venes  ît  will  not  throw  the  legal  system  into  disorder, 
it  will  have  no  retroactive  effect.  Security  would  no 
longer  exist  if  the  legal  system  had  lacunae  or  could 
vary  of  its  own  accord. 

Hence  also  came  the  hostility  and  dislike  so  long 
shown  by  jurisconsults  towards  custom,  the  most  in- 
exact form  of  law.^^ 

In  the  idea  of  security  is  involved  not  only  the  sta- 
bility of  law  but  rapidity  in  its  procedure;  a  right 
delayed  in  its  exercise  is  a  right  impaired. ^^ 

In  public  law,  does  not  liberty  exist  largely  because  it 
gives  security  to  individuals  in  doing  wnat  they  want 
to  do?    The  legislators  of  1789,  inspired  by  this  idea, 

l'usée  Esmein,  "Rapport  à  la  Commission  de  Revision  du  Code  Civil 
sur  la  Coutume."  Compare  Schatz,  op.  cit.  pp.  319ff.,  on  the  historical 
school. 

"  Some  fundamental  technical  solutions  also,  those  which  concern 
the  existence  of  subjective  rights,  are  perhaps  concerned  with  the  idea 
of  security.  Comte  wrote  that  "the  notion  of  right  should  disappear 
from  the  domain  of  philosophy;  .  .  .  Positivism  admits  only  duties,  for 
from  its  social  point  of  view  it  cannot  consider  any  notion  of  right  always 
founded  on  individuality"  ("Catéchisme  Positiviste,"  p.  288).  After 
him  Diiguit  has  denied  the  existence  of  subjective  rights  belonging  to 
individuals,  as  resting  on  the  postulate  of  the  existence  of  certain  wills 
supposed  to  be,  as  such,  superior  to  others,  and  of  a  peculiar  nature. 
Perhaps  this  criticism  is  in  itself  not  well  founded,  for  it  may  be  avoided 
by  admitting  that  different  wills  may  have  a  relative  value  in  certain 
cases.  True,  this  relative  value  is  itself  a  postulate,  but  it  may  be  just 
as  necessary  a  postulate  as  that  of  solidarity,  which  the  eminent  author 
accepts  without  hesitation  ("Droit  Individuel,  Droit  Social,"  p.  8), 
and  rightly,  because  every  science  rests  on  certain  postulates,  whether 
it  will  or  no. 

It  is  true,  however,  that  if  objective  law  be  taken  as  a  point  of  departure 
agreement  is  easier  to  bring  about.  Tarde  noted,  in  this  connection, 
that  the  law  attacks  social  questions  on  their  accessible  side,  by  account- 
ing all  matters  rights,  that  is,  matters  of  agreement;  and  nothing  an- 
swers that  description  better  than  the  affirmation  of  an  exterior  rule  to 
which  everyone  must  bow. 

But  from  the  practical  point  of  view,  given  the  need  of  security,  given 
the  general  desire  for  it  in  men's  minds,  what  better  meets  the  situation 
than  to  assert  that  everyone  has  rights?  The  individual  should  have 
rights  because  it  is  socially  useful  that  he  should.  (See  in  this  sense 
Spencer,  "The  Study  of  Sociology,"  French  éd.,  p.  43.3.)  The  matter 
must  thus  be  presented  to  him,  as  pure  truths  and  principles  of  action 
are  different  things,  which  moreover  are  not  easily  to  be  reconciled. 


§238]  SECURITY  423 

were  logically  led  by  it  to  the  Declaration  of  the  Rights 
of  Man.  It  is  to  this  idea  that  we  also  owe  the  rule  "nulla 
pœna  sine  lege,"  the  suppression  of  arbitrary  punish- 
ments, the  guaranties  given  the  defendant.  At  bottom 
it  is  the  most  solid  basis  of  the  democratic  idea;  for 
one  of  the  chances  one  has  of  being  well  governed  is  that  of 
participating  oneself  in  the  government. 

Socially,  it  is  the  strongest  support  of  the  theory  of 
liberalism  in  politics:  to  supply  everybody  with  a  cer- 
tain zone  of  action  in  which  he  can  freely  move  without 
being  hampered  by  prohibitions  or  responsibilities. 
Every  philosophy  based  on  the  "inviolability  of  the 
human  person" ^^  can  have  no  better  foundation  than 
the  sense  of  security  with  which  it  inspires  everyone; 
for  liberty  does  not  always  shine  through  its  positive 
results,  as  it  lends  itself  so  easily  to  abuses. 

From  another  point  of  view,  that  of  public  charity 
and  of  provision  for  the  future,  the  interest  of  security 
is  a  solid  argument  in  favor  of  State  socialism;  it  leads 
naturally  enough  to  the  idea  that  everyone  must  have 
his  bread  assured  in  case  of  accident  or  sickness,  and  in 
old  age. 

§  239.  The  Influence  of  the  Idea  Shown  in  the  Pro- 
visions of  Private  Law.  Limiting  ourselves  to  private 
law,  we  see  that  security  plays  therein  a  no  less  important 
rôle.  According  to  the  most  probable  theory,  con- 
tractual obligations  come  into  existence  from  the  moment 
in  which  one  of  the  parties  can  count  upon  the  adhesion 
of  the  other  to  his  proposals.  It  is  not  proper  that  the 
hope  he  has  conceived  be  deceived.  This  idea  dominates 
notably  the  provisions  of  the  Swiss  Federal  Code  of 
Obligations  (arts.  5ff.).i4a 

"  See  in  this  sQnse  Boistel,  "Philosophie  du  Droit,"  vol.  i,  p.  72. 
"''  [This  enactment  was  not  incorporated  in  the  Swiss  Civil  Code  of 
1907  and  is  still  in  force.  —  Ed.] 


é24  RENÉ   DEMOGUE  [Ch.XIII 

Thîs  idea  of  security  is  the  foundation  stone  of  a  whole 
series  of  formulated  legal  dispositions,  which  may  be 
thus  suimmed  up:  He  who  has  treated  with  a  person 
having  every  appearance  of  the  ownership  of  a  right 
should  be  protected.  A  reasonable  appearance  of  the 
ownership  of  a  right  ought  to  produce  the  same  effect 
as  actual  ownership  of  the  right,  so  far  as  relations  with 
third  parties  are  concerned. ^^  There  are  deduced  from 
this  rule  the  following  consequences,  which  are  either 
actually  accepted,  or  which  there  is  a  tendency  to  accept, 
in  law  and  in  practical  life. 

The  possessor  of  a  movable  is  treated  as  the  owner; 
in  the  case  of  movables,  possession  is  equal  to  title 
(art.  2279,  Civil  Code).i« 

The  possessor  of  an  immovable  is  treated  as  the  owner 
in  the  long  run,  through  prescription  (arts.  2262,  2265, 
Civil  Code).  In  any  case  the  fruits  are  his  if  he  is  in 
good  faith  (art.  549,  Civil  Code). 

The  apparent  heir  is  treated  as  owner  so  far  as  his  re- 
lations with  third  parties  go.^^  "Error  communis  facit 
jus"  (see  decision  of  the  Court  of  Cassation,  January  26, 
1897,  Dalloz  1900.1.33).i8 

The  holder  of  a  negotiable  instrument  may  sue  all 
those  whose  signatures  are  upon  it,  who  cannot  avail 
themselves  of  defenses  that  would  be  available  against 
his  vendor. 

The  holder  of  an  instrument  payable  to  bearer  should 
be  treated  as  owner. 

"  See  on  these  points,  Emm.  Levy,  "Capital  et  Travail,  ou  le  Droit 
Repose  sur  des  Croyances,"  in  Questions  Pratiques  de  Législation  Ouvrière, 
1909,  p.  178  in  particular. 

18  Compare  art.  932,  German  Civil  Code. 

"  See  notably  Cremieii,  "De  la  Validité  des  Actes  accomplis  par  l'Héri- 
tier Apparent,"  RDC  1910,  p.  39. 

"As  to  this  maxim,  see  especially  Marin,  "A  Propos  de  la  Maxime 
'Error  communis  facit  jus,'  "  pp.  25ff. ;  Soniewski,  "Essai  sur  le  Rôle 
Actuel  de  la  Maxime,"  thesis  at  ALx;     Valabrègue,  RCL  1890,  pp.  30ff. 


§239]  SECURITY  425 

The  owner  of  record  should  be  held  to  be  the  owner  so 
far  as  third  persons  are  concerned  (decision  of  the  Court 
of  Cassation,  November  13,  1867,  Sirey  1867.1.423). 

An  agent  who  has  acted  in  excess  of  his  powers  may, 
as  against  third  persons,  bind  his  principal  (see  de- 
cision of  Court  of  Cassation,  October  23,  1905,  Dalloz 
1906.1.16). 

An  individual  is  entitled  to  compensation  for  impair- 
ments of  his  rights  even  regardless  of  the  question  of 
fault.  This  is  as  yet  only  a  tendency,  progress  in 
which  is  marked  by  such  doctrines  as  those  of  responsi- 
bility for  the  act  of  things,  occupational  risk,  quasi- 
contract  of  neighborhood,  responsibility  for  the  act  of 
animals,  and  so  on. 

The  obligations  assumed  by  an  individual  should  be 
fixed  not  by  his  inner,  secret  thought,  but  by  his  open 
declaration. ^9  Thus  the  German  Civil  Code  declares 
that  a  declaration  is  valid  though  made  with  a  secret 
reservation  unknown  to  him  to  whom  the  declaration 
is  made  (art.  116)  ^^  or  the  purely  apparent  declaration 
whose  real  character  is  unknown  to  the  third  party  (art. 
117).  In  the  same  spirit,  the  German  Civil  Code  admits 
that  an  offer  binds  him  who  has  made  it  (art.  145)  .^i 

Acts  of  a  corporation  which  are  null,  should  be  regu- 
larized as  soon  as  possible. 

§  240.  How  Private  Law  Secures  Rights  from  Attack 
by  Third  Parties.  From  the  idea  of  security  is  derived 
the  whole  theory  of  the  publicity  necessary  to  assure  the 
validity  of  a  right  as  against  a  third  person,  a  theory 

"See  on  this  most  important  theory:  Saleilles,  "La  Déclaration  de 
Volonté";  Dereux,  "Étude  des  Diverses  Conceptions  Actuelles  du  Con- 
trat," RCL  1901,  p.  513;  Meynial,  "La  Déclaration  de  Volonté,"  RDC 
1902,  p.  545;  Hauriou  and  De  Bezin,  "La  Déclaration  de  Volonté  dans 
le  Droit  Administratif  Français,"  RDC  1903,  p.  543. 

2» See  "Commentaire  de  la  Traduction  Officielle,"  vol.  i,  p.  121; 
Saleilles,  op.  cit. 

"  "Traduction  Officielle,"  vol.  i,  pp.  166ff. 


426  RENÉ   DEMOGUE  [Ch.XIII 

which  may  be  thus  expressed  :  a  right  may  be  set  up  as 
against  all  the  world  only  so  far  as  the  public  has  been 
put  in  a  position  equivalent  to  notice  by  certain  measures 
of  publicity.  This  idea  is  applied  to  transfers  of  real 
estate  by  the  very  imperfect  statute  of  1855  on  the  re- 
cording of  instruments,  to  gifts  by  article  939  of  the  Civil 
Code,  to  transfers  of  credits  by  article  1690  of  the  Civil 
Code,  to  transfers  of  patents  by  the  Law  of  July  5, 
1844,  article  20,  to  marriage  contracts  which  stipulate  the 
marriage  settlement  by  the  Law  of  July  10,  1850,  and 
to  many  other  matters. 

Mortgages  are  not  valid  as  against  third  parties  if 
they  have  not  been  recorded. 

Formalism  in  its  modern  form,^^  no  longer  as  in  primi- 
tive times  a  way  of  materializing  ideas,  pursues  the  end 
of  security.  We  are  sure  of  being  bound  only  if  the 
proper  form  has  been  observed;  and  at  the  same  time 
the  extent  of  our  engagement  is  made  certain.  For 
third  parties,  form  is  a  veritable  touchstone  to  show 
whether  a  certain  juridical  act  has  occurred. ^^  The 
idea  of  security,  also,  in  the  form  of  simplification, 
which  is  its  corollary,  may  go  so  far  as  to  take  account 
only  of  knowledge  of  an  act  through  the  formality  of 
publication,  refusing  any  effect  to  knowledge  in  fact. 

§  241.  Burden  of  Proof.  Still  other  consequences 
of  the  idea  of  security  are  the  principles  governing 
burden  of  proof.  If  we  admit  that  the  claimant  should 
make  his  proof,  if  in  consequence  the  presumption,  till 
there  is  proof  to  the  contrary,  is  that  the  state  of  facts 
conforms  to  the  state  of  law,  we  contribute  to  the  se- 
curity   of    those    in    possession.     "Beati    possidentes." 

"  See  on  the  renascence  of  formalism,  Gény,  "Livre  du  Centenaire  du 
Code  Civil,"  vol.  ii,  p.  993. 

23  See  Chronique  de  Jurisprudence,  RDC  1905,  p.  895;  Campion; 
"De  la  Connaissance  Acquise  par  les  Tiers  d'un  Transfert  de  Créance 
non  Signifié,"  Lille  thesis,  1909. 


§241]  SECURITY  427 

These  principles  have  a  Hmited  bearing,  but  a  great  im- 
portance. 

Let  us  be  satisfied  with  these  few  examples,  for  other- 
wise we  must  review  almost  the  whole  of  private  law. 

§  242.  Underlying  Most  of  these  Conceptions  of  Pri- 
vate Law  is  the  Aim  of  Facilitating  Transactions  — 
Dynamic  Security.  All  of  the  propositions  which  we 
have  been  formulating  go  back  to  a  common  idea  of 
security,  but  almost  all  to  security  understood  in  a 
particular  way,  as  we  can  now  make  clearer.  Most 
of  the  rules  which  we  have  used  as  examples  may  be 
summed  up  in  a  sentence:  the  owner  of  a  right  loses 
all  or  part  of  the  advantages  which  it  bestows  when 
this  result  seems  useful  in  the  interest  of  a  third  person 
who  can  reasonably  have  believed  that  such  a  right 
did  not  exist.  Thus  it  suffices  that  a  person  believed  or 
could  believe  that  a  right  would  be  acquired,  for  the 
right  to  be  set  up.  The  shadow  of  a  prey  to  be  grasped 
is  transformed,  by  a  happy  metamorphosis,  into  a  genu- 
ine right. 

Such  is  certainly  the  spirit  of  many  of  the  solutions 
adopted  by  modern  legal  systems.  The  object  of  all 
these  dispositions  is  the  same,  to  make  transactions 
easier.  A  man  will  evidently  be  induced  to  perform 
a  juridical  act  to  acquire  a  right,  if  he  knows  that,  if 
certain  things  appear  to  be  true,  the  result  to  him  will 
be  the  same  as  if  they  were  true.  If  I  am  sure  that  a 
certain  declaration  of  will  which  has  been  made  me  will 
be  taken  as  the  basis  of  my  right,  I  am  more  tranquil 
than  if  the  secret  will  of  the  party  making  the  declaration 
would  govern.  I  will  the  more  readily  lend  on  mortgage 
if  I  know  that  only  such  mortgages  as  precede  mine  on 
the  records  have  a  prior  right  to  mine  in  the  realty. 
The  security  thus  assured  is  a  leaven    of   activity,  a 


428  RENÉ   DEMOGUE  [Ch.XIII 

bounty  given  to  active  individuals,  which  may  be  as 
important  as  a  bounty  on  exported  goods  or  on  manu- 
facture. 

Passing  to  a  neighboring  order  of  ideas,  my  security 
increases  my  inclination  to  perform  this  or  that  act  if 
I  know  that  whatever  may  happen,  the  consequences 
can  never  be  unfavorable  to  me,  or  at  most  but  to  a 
certain  point.  I  will  accept  more  readily  a  power  of 
attorney,  a  deposit,  if  I  am  freed  from  any  responsibility, 
or  nearly  so.  I  will  take  shares  more  readily  in  a  com- 
pany if  my  responsibility  to  the  public  as  a  share- 
holder is  limited  to  my  subscription.  I  will  be  more 
eager  to  buy  if  I  know  that  I  am  guaranteed  against 
ejectment  or  concealed  defects.  These  solutions  favor- 
able to  security  are  entirely  in  the  spirit  of  western 
European  law,  dominated  as  it  is  by  an  ideal  of  business, 
by  the  idea  that  the  object  to  be  sought  is  to  produce 
more,  to  manufacture  more,  to  sell  more,  to  multiply 
enjoyments,  to  satisfy  more,  and  more  varied,  needs. 

§  243.  Static  Security  the  Counterpart  of  the  Fore- 
going. But  alongside  this  conception  of  security,  which 
I  would  like  to  term  dynamic,  because  it  incites  to  action, 
there  is  another,  its  necessary  counterpart,  which  it 
would  be  fair  to  call  static.  It  may  be  translated  by 
maxims  which  appear  to  bear  the  mark  of  evident 
truth:  "Nemo  dat  quod  non  habet,"  "Quod  nullum 
est  nullum  producit  effectum,"  "One  cannot  be  obliged 
against  one's  will."  When  a  person  is  entitled  to  a  right 
it  should  not  be  possible  for  him  to  be  legally  deprived 
of  it  by  the  act  of  a  third  person.  If  I  own  personalty, 
an  obligation  to  bearer,  for  instance,  ought  I  to  lose  it 
through  a  sale  by  my  depositary?  Ought  my  obli- 
gation to  be  determined  by  what  appears  to  be  my  will 
rather  than  by  my  will  itself?  Should  a  company 
be  bound    in   cases    where    there    is   a   misuse   of    its 


§2431  SECURITY  429 

signature  by  one  of  its  members  ;  should  the  true  heir 
be  responsible  for  the  acts  of  the  apparent  heir?  If  I 
have  been  injured,  should  I  recover  less  than  my  loss? 
If  I  have  a  right,  is  it  proper  that  my  adversary  defend 
on  the  ground  that  he  did  not  know  the  law?  Should 
I  not  triumph  by  invoking  the  maxim  "Ignorance  of 
the  law  excuses  no  one?"^* 

§  244.  The  Problem  Arising  from  the  Opposition. 
These  solutions  are  all  open  to  criticism  in  themselves, 
and  what  is  more  important,  in  the  name  of  the  very 
principle  of  security.  What  rest  can  there  be  for  him 
whose  right  may  disappear  the  moment  in  which  he 
least  looked  for  such  a  loss  to  happen  ? 

This  opposition  of  static  and  dynamic  at  the  base  of 
everything  has  been  observed  and  studied  by  philo- 
sophers. Did  not  Auguste  Comte  say  that  the  great 
problem  was  to  reconcile  order  and  movement?  The 
beliefs  and  the  needs  specified,  and  in  that  sense  created, 
by  invention  and  imitation,  says  Tarde,  but  which 
virtually  preexisted  their  action,  have  their  roots  deeper 
than  the  world  of  society,  in  the  world  of  life.  This 
latter,  in  its  turn,  draws  its  force  from  the  physical 
world  whose  own  forces  have  "their  source,  unfathom- 
able for  our  physicists,  in  a  hypophysical  world,  which 
some  name  Noumena,  others  Energy,  others  again  the 
Unknowable.  Energy  is  the  most  generally  accepted 
name  for  the  mystery.  By  this  unique  term  is  desig- 
nated a  reality  which  is  seen  to  be  always  double  in  its 
manifestations;  and  this  eternal  bifurcation,  which  is 
reproduced  in  surprising  metamorphoses  at  each  of  the 
superimposed  stages  of  universal  life,  is  not  the  least 
of  the  characteristics  to  be  noted  as  common  to  all  of 

"  Note,  nevertheless,  that  this  adage  is  not  exclusively  a  consequence 
of  static  security,  and  that  it  is  associated  especially  with  the  idea  of 
giving  absolute  force  to  the  law,  as  the  organ  of  the  general  interest. 


430  RENÉ   DEMOGUE  [Ch.XIII 

them.  Under  the  different  names  of  matter  and  move- 
ment, of  organs  and  functions,  of  institutions  and  progress, 
this  great  distinction  of  static  and  dynamic,  which 
includes  that  of  space  and  time,  divides  the  whole  uni- 

"9'» 

verse.  ^^ 

This  capital  opposition  is  here  clearly  seen,  and,  from 
a  social  point  of  view,  we  are  touching  the  heart  of 
the  problem  :  we  see  the  idea  of  security  turning  against 
itself.  Shall  we  prefer  the  security  of  owners  of  rights 
or  of  those  who  acquire  them?  At  bottom  the  struggle 
is  more  inextricable  than  it  seems,  for  the  owner  of  to-day 
is  the  acquirer  of  yesterday.  If  article  2279  of  the  Civil 
Code  favors  me  when  I  acquire  an  instrument  to  bearer, 
from  one  not  the  owner,  it  becomes  a  menace  when  I 
confide  that  instrument  to  a  banker  or  depositary  who 
may  sell  it.  It  is  the  eternal  history  of  government 
installed  by  force,  which,  by  that  very  fact,  puts  in  the 
heads  of  its  enemies  the  idea  that  a  bold  stroke  may 
win  power. 

§  245.  A  Reconciliation  Possible?  In  a  word,  there 
is  therefore  an  insoluble  conflict  between  two  conceptions 
of  security.  But  though  this  conflict  exists  in  theory, 
in  practice  it  is  not  apparent  to  the  short-sighted  vision 
of  the  average  man.  This  purely  subjective  security 
due  to  ignorance  and  forgetfulness  of  danger  is,  never- 
theless, strong  enough  to  be  a  force.  An  error  as  well 
as  a  truth  may  constitute  a  force-idea.  One  deals  very 
lightly  in  the  acquisition  of  personal  property,  without 
thinking  of  the  danger  which  he  will  run  as  owner.  It 
cannot,  however,  be  denied  that  the  subjective  security 
which  results  from  application  of  the  idea  of  dynamic 
security  is  an  incentive  to  action,  and  that  the  objective 
security  arising  from  the  idea  of  static  security  protects 
those  in  possession. 

^^Tarde,  "Lois  de  l'Imitation,"  p.  159. 


§245]  SECURITY  431 

It  is  the  duty  of  the  legislator  to  choose  between  these 
two,  whose  relative  value  is  undemonstrable,  or  at  least 
undemonstrated.  Only  by  virtue  of  that  so  subjective 
thing,  a  conception  of  life,  can  one  be  preferred  to  the 
other.  Western  legislators,  as  men  of  action,  will  lean 
in  general  towards  the  first,  as  favoring  business,  while 
those  who  are  especially  interested  in  defending  estab- 
lished rights,  partisans  of  the  aristocratic  or  contem- 
plative conceptions  of  life,  will  evidently  incline  towards 
the  second .  These  latter  will  find  support  in  the  material- 
istic school  of  law,  in  that  old  formal  logic  which  looks 
upon  a  right  as  essentially  subjective  and  as  only  being 
lost  by  the  act  of  its  owner  ("nemo  dat  quod  non  habet"). 

I  do  not  believe  that  the  world  is  necessarily  bound  to 
witness  an  endless  conflict  between  static  and  dynamic 
security.  First  it  must  be  noted  that,  in  certain  cases, 
certain  institutions  give  satisfaction  to  both  ideas. 
Formalism,  often  so  reviled  as  contrary  to  the  principle 
of  economy  of  time,  of  which  we  shall  speak  later,  and 
often  wrongly  said  to  be  in  decadence .^^  satisfies  the 
static  security  of  him  who  obligates  himself  and  thus 
knows  exactly  when  he  is  bound,  and  the  dynamic 
security  of  third  persons  who  know  that  a  certain 
act  has  taken  place  and  can  make  their  arrange- 
m.ents  accordingly.  Marriage  solemnities  are  thus 
important  for  third  persons  who  are  notified  of  the 
fact  of  marriage,  as  well  as  for  the  parties  to  the  marriage 
contract. 

§246.  Means  of  Mitigating  the  Conflict.  1:  In- 
surance. When,  however,  the  two  conceptions  re- 
main distinct  in  their  consequences,  there  may  be  ways 
of  preventing  a  hopeless  opposition  between  them. 

26  See  Picard,  "Droit  Pur,"  p.  222.  See  on  this  point  Jhering,  "Geist 
des  Rômischen  Rechts,"  French  éd.,  iii,  p.  164.  [For  the  latter  work 
see  "Law  as  a  Means  to  an  End,"  in  this  Series,  p.  455,  footnote. —  Ed.] 


432  RENÉ  DEMOGUE  [Ch.xiii 

The  first  is  insurance.  One  person  has  been  injured 
by  another,  an  accident  of  some  sort  has  occurred;  a 
choice  must  then  be  made  between  two  solutions.  Either 
the  proprietor  will  be  held  responsible  for  losses  caused 
through  his  property  or  his  act  only  where  he  was  at 
fault;  the  proprietor,  like  every  active  person,  is  thus 
granted  security,  his  fortune  will  not  be  affected  except 
by  his  fault,^''  and  he  will  escape  all  liability  by  the  use 
of  a  little  prudence.  Or,  on  the  other  hand,  the  injured 
person  will  be  allowed  to  claim  his  damages  even  without 
alleging  fault;  but  it  must,  in  such  a  case,  be  admitted 
that  he  will  have  a  very  peculiar  security  for  his  activity 
or  for  his  acquired  fortune,  whichever  may  have  been 
injured  by  the  accident. ^^ 

Insurance  simplifies  this  conflict  of  interests,  for  the 
loss  is  ultimately  borne  by  the  insurer.  The  subject 
of  debate,  who  shall  bear  the  loss,  is  eliminated,  or  rather 
the  question  is  presented  from  another  point  of  view, 
and  becomes  the  problem  who  shall  pay  the  premiums, 
as  insurance  is  not  gratuitous.  Wliile  not  so  trouble- 
some as  the  other,  this  question  is  nevertheless  of  im- 
portance and  its  solution  involves  particular  elements. 
The  practical  possibility  of  getting  insurance  must  be 
considered,  workmen  being  less  able  to  do  so  than  em- 
ployers, and  one  must  also  consider  the  advantages  of 
a  hesitating  legal  system,  the  larger  part  of  which  is  not 
explicit  in  all  matters,  which  makes  it  for  the  interest 
of  both  parties  to  insure,^^  and  thus  it  becomes  possible 

2'  This,  of  course,  with  the  reservation  that  only  fairly  serious  faults 
shall  be  considered,  for  everybody  is  at  times  guilty  of  slight  faults  in- 
jurious to  another. 

"The  problem  here  is  rather  special,  for  objective  responsibility 
protects  now  an  acquired  possession,  now  an  activity.  On  the  other 
hand  simple  liability  for  civil  fault  tends  to  charge  now  the  master  of 
an  acquired  possession  (liability  for  the  act  of  things),  now  him  who 
manifests  an  activity  (liability  of  the  employer,  of  the  owner  of  an 
automobile,  etc.). 

2*  Thus  the  same  building  is  in  current  practice  twice  insured  against 
fire,  by  the  owner  and  by  the  tenant,  the  latter  insuring  his  risks  as  lessee. 


§246]  SECURITY  433 

to  reduce  premiums,  since  two  are  paid  for  the  same  risk. 
In  any  case,  this  is  a  sort  of  mixed  regulation  which  can 
come  near  to  satisfying  everybody. 

2:  Publicity.  The  second  procedure  is  publicity, 
which  consists  in  saying  that  a  person  may  depend  on 
what  appear  to  be  the  facts,  as  they  result  from  certain 
measures  of  publicity.  Thus  the  buyer  of  land  may 
rely  on  the  public  records  of  deeds  and  mortgages,  the 
purchaser  of  a  credit  on  the  statements  of  the  debtor, 
a  creditor  on  the  statements  in  the  declaration  of  marriage 
that  no  contract  of  marriage  involving  money  matters 
has  been  made.  If  the  owner  of  a  right  fulfills  quite 
simple  formalities,  he  will  assure  its  conservation;  he 
has  only  to  conform  to  the  appropriate  law  regarding 
publicity  in  order  to  guarantee  his  right  against  third 
parties.  In  this  way  a  very  convenient  means  of  re- 
conciling the  differing  interests  of  security  involved  in 
the  situation  is  available.  On  one  side  is  fixed  what 
should  alone  be  held  to  be  proof;  on  the  other,  the 
owner  of  the  right  is  offered  the  means  of  providing 
for  his  right  the  only  evidence  which  will  be  admitted 
in  regard  to  it. 

§247.  Other  Means  of  Settling  the  Conflict.  1:  In 
Case  of  Bad  Faith.  Outside  of  these  two  methods, 
reconciliation  is  still  possible  when  the  purchaser  of  the 
right  is  in  bad  faith  ;  if  he  knows  that  he  had  treated  with 
a  merely  apparent  heir  or  with  one  who  was  not  the  true 
owner;  if  he  knew  that  the  declaration  which  he  re- 
ceived did  not  correspond  to  the  expressed  intention  ;  if 
he  knowingly  created  a  state  of  fact  from  which  injury 
was  sure  to  happen  to  him  ;  where  a  neighboring  manu- 
factory would  make  the  building  he  was  putting  up 
uninhabitable,  for  example.  It  is  very  clear  that  the 
principle  of  dynamic  security  has  no  application  to 
such  cases,  for  it  would  result  in  so  direct  and  general 


434  RENÉ  DEMOGUE  [Ch.xiii 

a  destruction  of  the  security  of  possessors  that  the 
end  would  be  the  disappearance  of  every  actual  right. 

There  is,  however,  one  inconvenience  in  these  solu- 
tions. The  distinction  between  good  and  bad  faith 
introduces  into  the  law  a  psychological  element  always 
hard  to  establish,  and  therefore  a  little  of  their  tran- 
quility is  taken  away  from  owners  of  rights,  who  may  be 
afraid  of  encountering  a  person  of  good  faith,  and  also 
from  the  purchaser,  who  may  fear  to  seem  in  bad  faith. 
There  is,  then,  not  a  compromise  betu^een  the  security 
of  different  persons,  but  rather  a  slight  diminution  in 
the  security  of  each  one. 

2:  Where  the  Parties  are  in  Good  Faith; 
Liability  for  Fault.  The  law  may,  however,  be 
charged  with  the  duty  of  deciding  whether  the  security 
of  one  person  is  to  be  preferred  to  that  of  another,  both 
adversaries  being  in  good  faith.  In  such  cases  it  will 
sometimes  be  possible  to  find  a  fault,  imprudence  or 
negligence,  sufficient  to  turn  the  scale  against  the  party 
who  has  been  guilty  of  it. 

This  system,  sufficiently  rigorous  where  the  fault  is 
serious,  becomes  less  and  less  satisfying  as  the  negligence 
committed  grows  slighter.  All  security  is  lost  if  the 
owner  of  a  right  incurs  what  may  be  a  heavy  responsi- 
bility for  slight  fault,  for  as  the  fault  grows  less  everyone 
feels  himself  less  able  to  avoid  committing  it  and  to  give 
the  attention  necessary  to  that  end.  The  theory  of 
full  liability  for  slight  faults,  a  theory  which  has  been 
aggravated  by  the  decisions  of  courts  in  their  refinement 
of  the  idea  of  fault  for  the  past  century,  is  already  a 
source  of  insecurity. 

Without  insisting  further  on  the  point,  we  consider  it 
as  established  that  fault  itself  is  not  an  idea  capable  of 
indefinite  extension.  I  suffer  a  loss  if  my  banker  sells 
negotiable   paper   which    I   have   deposited   with   him. 


§247]  SECURITY  435 

Is  it  fair  to  say  that  I  have  been  wrong  in  trusting  a  dis- 
honest man?  In  fact  I  have  merely  trusted  to  appear- 
ances, just  as  did  the  purchaser  who  thought  his  vendor 
honest,  and  so  beUeved  him  to  be  the  owner.  Was  the 
buyer  not  wrong  in  buying  from  an  unscrupulous  banker? 
The  fault,  if  any  there  be,  is  equal  on  both  sides.  Further, 
are  there  not  many  cases  in  which  it  is  necessary  in 
practice  to  make  a  deposit?  Am  I  not  obliged  to  de- 
posit my  negotiable  paper  for  payment  and  for  other  pur- 
poses? 

There  are,  then,  necessarily  some  cases  in  which  the 
legal  system  and  the  judge  cannot  avoid  making  a  choice 
between  the  interests  of  different  people,  the  interest 
of  business  and  that  of  owners.  The  modern  tendency 
is  evidently  to  prefer  the  former,  whether  it  be  in  a 
question  of  real  or  of  personal  property,  of  negotiable 
instruments,  of  the  formation  or  interpretation  of 
obligations,  or  even  of  their  extinction.^''  It  is  true  that 
this  point  of  view  is  completed  by  another,  the  tendency 
to  establish  a  risk  of  activity.  To  a  certain  extent 
this  tendency  is  in  contradiction  with  the  idea  of  dynamic 
security .^^     But  it  may  be  explained  by  another  idea, 

30  Hence  the  short  periods  allowed  for  bringing  suits  on  warranty' 
for  claims  against  carriers,  and  so  on. 

31  We  call  attention  to  the  fact  that  in  proportion  as  the  notion  of 
fault  is  refined  by  the  inclusion  of  ever  slighter  degrees,  we  approach 
the  idea  of  risk,  nowadays  of  great  importance.  How  is  this  idea  of  risk 
applied?  We  ha\'e  shown  in  the  text  that  it  is  sometimes  unfavorable 
to  the  person  in  possession  (in  measures  favoring  the  purchaser  of  per- 
sonalty, of  instruments,  in  the  rule  "error  communis  facit  jus,"  etc.), 
sometimes  favorable  to  the  maintenance  of  a  certain  situation  by  the 
system  of  equivalent;  as  when  employers  are  obliged  to  assume  the 
risk  to  workmen  from  accident,  from  old  age,  perhaps  later  those  from 
sickness  or  unemployment;  when  the  owner  of  an  automobile  or  of  an 
animal  is  made  liable  for  any  injury  caused  by  his  property.  But  this 
apparent  contradiction,  which  makes  the  same  person  the  beneficiary 
or  the  sufferer  by  this  vast  system  of  risk,  is  explained  by  the  desire  to 
favor  the  business  man  as  against  the  bondholder,  the  workman  who 
cannot  bear  the  heavy  expense  of  great  losses  as  against  him  who  can 
assume  them  without  too  much  difficulty. 


436  RENÉ   DEMOGUE  [Ch.XIII 

that  the  man  who  bears  the  risk  is  the  better  able  to 
insure  it.  Practical  necessities  are  thus  satisfied  by  a 
series  of  half-measures. 

§  248.  Security  Viewed  in  a  Different  Light:  As  a 
Sentiment.  Security  should  not  solely  be  considered 
as  creating  stability  or  encouraging  activity.  It  must 
be  examined  from  another  point  of  view  which  will 
necessitate  a  profounder  penetration  of  its  meaning. 
Security  is  a  sentiment,  as  subjective  as  anything  can 
be.  It  may,  nevertheless,  be  considered  both  objectively 
and  subjectively.  It  exists  objectively  when  the  result 
desired  may  be  materially  accomplished.  But  there 
may  be  no  corresponding  sentiment  in  the  particular  in- 
stance, and  inversely  there  may  be  a  deceptive  security; 
a  man  may  believe  that  he  is  sure  of  attaining  a  result 
when  the  opposite  is  true. 

For  the  lawyer,  the  sentiment  of  security  exists  as 
soon  as  security  exists  objectively,  but  it  is  not  so  for 
the  layman.  Thus  a  certain  publicity  in  regard  to 
rights,  a  certain  formalism,  is  made  necessary;  the 
posting  of  labor  laws  for  the  information  of  the  public 
is  assuming  to-day  a  certain  importance,  for  this  pub- 
licity gives  a  subjective  security  to  the  world  of  labor, 
in  place  of  the  defective  knowledge  it  previously  had  of 
its  rights. 

§  249.  The  Sentiment  of  False  Security.  Inversely 
there  may  be  a  false  security.  In  a  certain  measure, 
this  must  be  admitted  to  be  a  good  thing,  for  it  may 
have  as  a  consequence  the  determination  of  activities 
advantageous  both  to  the  person  acting  and  to  others. 
Men  frequently  decide  to  act  solely  because  they  do 
not  see  the  dangers  which  surround  them.  Too  acute  a 
perception  of  redoubtable  realities  leads  to  inaction. 
False  security,  however,  is  often  most  undesirable  and 
a  cause  of  disaster,  so  it  is  most  dangerous  to  spread  a 


§249]  SECURITY  437 

sense  of  false  security  by  seeming  to  give  rights  which 
are  limited  by  an  undisclosed  clause.  In  this  connection 
it  is  to  be  regretted  that  the  legislator  by  his  silence  and 
inaction  allows  insurance  policies,  contracts  of  security 
"par  excellence,"  to  contain  so  many  ambushes  for  the 
insured,  and  that  measures  have  not  been  taken  to  make 
his  real  situation  clear  to  him.  Instead  the  attractive 
principle  of  liberty  of  contract  has  been  exalted,  as  if  a 
principle  were  good  in  proportion  to  the  badness  of  its 
results. 

False  security  should  command  the  attention  of  the 
lawyer,  whose  duty  it  is  to  avoid  embarrassing  the 
public  with  it.  If  ever  useful,  it  is  only  so  in  case  of 
those  special  circumstances  against  which  the  imperium 
of  governments  should  guard  by  fixing  responsibility 
upon  those  who,  having  authority,  should  also  bear 
its  burden,  that  there  may  be  no  employment  of  this 
reason  of  State  without  proper  grounds.  This  solution, 
despite  its  inconveniences,  seems  the  least  evil,  the  one 
which  takes  the  least  wrong  account  of  the  social  interests 
and  of  the  interest  of  security  which  are  found  to  be 
involved. 

Nevertheless,  if  false  security  is  to  be  avoided,  how 
can  we  escape  being  preoccupied  with  the  general  short- 
sightedness and  carelessness  —  with  the  ardor  with  which 
men  of  business  assume  risks,  thinking  that  they  have  on 
their  side  a  security  which  they  have  not,  and  doing 
nothing  to  insure  that  security  which  they  might  have.^^ 
Must  we  not  ask  ourselves  if  a  vague  sentiment  of 
security  is  not  enough  to  determine  action?  Is  not  the 
attainment  of  complete  security  especially  an  idea  of 
the  lawyer  or  of  the  moralist,  whose  habits  of  research 
have   made   them   unquiet  spirits?     Would   it   not  be 

»2 1  appeal  not  to  bookish  erudition,  but  to  the  recollections  of  those 
who  know  men  of  business. 


438  RENÉ   DEMOGUE  [Ch.XIII 

unfortunate  if  this  state  of  mind  became  too  general, 
for  thought  often  kills  action,  and  would  not  too  great 
an  obsession  of  general  insecurity,  if  it  pressed  too  hard 
upon  the  minds  of  men  of  action,  be  disastrous? 

§  250.  The  Modern  Social  Conception  of  the  Position 
to  be  Secured  to  the  Propertyless.  Taking  as  point  of  de- 
parture what  I  look  upon  as  the  essence  of  our  western 
civilization,  and  what  has  become  really  feverish  in 
America,  the  taste  for  business,  we  may,  perhaps,  reach 
a  basis,  vague  no  doubt,  for  a  reconciliation  on  a  higher 
ground.  After  all,  what  is  not  vague  if  it  be  very  closely 
regarded  ? 

For  a  business  man,  time  is  precious,  he  cannot  de- 
vote himself  to  exceedingly  careful  examinations; 
business  must  be  done  promptly,  so  he  must  be  enabled 
to  perform  juridical  acts  quickly  but  safely.  It  is  so 
much  the  worse  for  the  worthy  owner  of  movables,  of 
negotiable  instruments,  who  becomes  a  victim  in  conse- 
quence. Let  him  go  into  business,  and  what  he  loses  on 
one  side,  the  little  losses  which  daily  life  will  inflict,  and 
which  ordinarily  cannot  be  averted  for  lack  of  time,  he 
will  make  up  for  on  the  other.  On  the  other  side 
stands  the  working  class,  which  has  no  property;  static 
security  will  come  to  the  manual  laborer  from  pensions 
in  case  of  accident,  or  of  old  age  or  infirmity,  at  the 
expense  of  the  business  man,  who  will  thus  pay  a  ransom. 
As  everything  is,  however,  imperfect,  there  will  remain 
a  group  of  persons  who  will  support  risks  without  any 
compensation;  widows  and  children  of  the  bourgeois 
class  who  can  be  neither  laboring  people  nor  employers. 
The  institution  of  guardianship  is  a  method  of  giving 
stability  to  their  fortunes,  but  it  is  not  an  apt  method. 
The  modern  social  conception  is  evidently  to  push  to 
action   those  who  should   be   pushed,   the   propertied, 


§  250  ]  SECURITY  439 

and  to  give  security  to  those  who  are  obliged  to  work 
because  propertyless,  though  at  the  risk  of  social  dis- 
organization. This  seems  fairer  than  to  say  that  others 
are  responsible  towards  us  to  the  extent  to  which  we 
must  have  confidence  in  them  to  induce  us  to  act 
(dynamic  security),  while  to  the  extent  to  which  we  must 
have  confidence  in  ourselves  to  induce  action  we  are 
not  liable,  as  in  the  case  of  a  physician.^*  If  the  first 
formula  is  correct,  the  second  is  not,  for  it  contradicts 
liability  for  things,  for  animals  or  for  other  persons, 
which  does  not  encourage  the  man  who  takes  over  a 
piece  of  real  estate  for  improvement  or  employs  some 
one  to  help  him  in  his  business.  Thus  will  be  set  up  a 
form  of  security  differing  in  accordance  with  social 
classes.  A  social  order  built  up  of  distinct  classes  will 
develop,  and  the  movement  which  is  now  perceptible 
will  be  not  the  least  curious  spectacle  of  the  future, 
bringing  us  closer  to  a  long  distant  past. 

§251.  Psychological  Considerations.  1:  Dynamic 
Security.  The  psychology  of  security  is  worthy  of 
more  attention.  It  deserves  examination  successively 
from  the  two  points  of  view  which  I  have  indicated, 
static  and  dynamic  security. 

When  a  legislator  establishes  a  principle  of  dynamic 
security,  it  is  almost  superfluous  to  say  that  his  end  is 
attained  when  the  degree  of  security  given  is  sufiicient 
to  determine  the  doing  of  the  act  which  the  law  desires 
done.  Where  possible,  this  point  should  not  be  passed, 
for  there  are  in  face  of  this  interest  others  not  less  im- 
portant. The  security  necessary,  and  that  alone,  is 
the  object  to  be  held  in  view  by  those  imbued  with 
the  spirit  of  reconciliation.  That  the  sentiment  of 
security  is  normally  equal  to  objective  security  may  be 

33  See,  in  agreement,  Emm.  Levy,  "Responsabilité  et  Contrat,"  RCL 
1899,  p.  373. 


440  RENÉ   DEMOGUE  [Ch.XIII 

taken  as  an  approximate  basis,  no  doubt  imperfect, 
but  generally  acceptable,  and  especially  so  for  the 
lawyer. 

The  degree  of  security  necessary  is  governed  by  psy- 
chological factors.  Sometimes  a  positive  advantage  must 
be  assured  to  induce  action.  The  legislator  and  lawyer, 
whose  psychology  is  necessarily  crude,  and  who  are 
often  obliged  to  reject  exceptions,  should  take  this 
presumption  as  certain. 

As  Mazarella  has  explained  very  well,  the  elements 
which  form  the  psychological  substratum  of  a  juridical 
act  are  now  individual,  now  collective.^*  When  they 
are  collective,  as  in  the  case  of  legal  institutions,  de- 
termination of  the  degree  of  security  can  only  be  approxi- 
mate. The  area  of  diffusion  of  the  psychological  pre- 
suppositions of  legal  systems  cannot  always  be  fixed, 
and  this  is  even  truer  of  the  intensity  of  the  sentiment 
which  determines  such  or  such  an  act. 

The  degree  of  security  which  is  necessary  and  sufficient 
will  vary  with  epoch  and  country.  In  troublous  times, 
when  nothing  better  is  possible,  business  will  be  done 
with  very  little,  since  nothing  better  can  be  had;  but 
if  one  lives  in  a  society  the  transactions  of  which  are 
ruled  by  a  high  standard  of  security,  the  guaranties 
demanded  will  be  considerable.  So  countries  which  are 
quiet  and  orderly  demand  very  extensive  security,  when 
doing  business  with  countries  in  which  disorder  prevails. 
The  simple  but  vague  principle  which  must  be  applied, 
and  which  lies  at  the  root  of  the  theory  of  credit  and 
of  suretyship,  to  give  what  is  needed  but  no  more, 
is  the  source  notably  of  the  theory  of  the  specific- 
ness  of  the  hypothecary  pledge,  in  contrast  with  the  gen- 
eral hypothec  of  the  old  law.  Perhaps  the  principle 
of  the  limited  liability  of    the  heir  may   finally   result 

>«  "Les  Types  Sociaux  et  le  Droit,"  Paris,  1908,  pp.  109ff. 


§251]  SECURITY  441 

from  it,  if  it  be  judged  that  this  innovation  will  not 
hurt  credit. 

But  because  security  need  not  be  excessive,  it  does  not 
follow  that  it  ought  not  to  be  as  good  as  possible  within 
the  required  limits.  The  guaranties  given  to  an  indi- 
vidual are  not  necessarily  numerous,  but  such  as  are  given 
should  be  efficacious.  From  this  point  of  view  Jhering 
is  correct  in  the  statement  that  lack  of  energy  shown 
by  the  law  against  debtors  is  a  proof  of  the  decadence 
of  law.^^ 

From  the  idea  of  security  also  flows  this  principle: 
the  creditor  should  be,  as  far  as  possible,  guarded  from 
changes  in  the  estate  of  his  debtor  or  in  the  thing  out 
of  which  he  expects  payment.  So  it  has  become  cus- 
tomary to  allow  him  to  claim  insurance  policies. 

The  extent  of  the  guaranties  to  be  given  once  fixed, 
another  question  arises.  Admitting  that  perfect  security 
is  an  impossible  ideal,  must  not  the  inconvenience 
possible  in  some  cases  be  met  by  advantages  allowed  in 
others? 

If  one  considers  in  a  general  way  the  system  which, 
assuming  that  certain  inconveniences  are  voluntarily 
or  forcibly  imposed  on  him  who  desires  security,  con- 
sists in  recompensing  him  by  advantages  that  will  even- 
tually be  granted  in  other  hypotheses,  it  is  clear  that 
this  system  readily  leads  under  color  of  compensation 
to  the  inconvenience  already  noted ,  the  abuse  of  guaran- 
ties. When  the  inconveniences  are  voluntarily  imposed, 
the  system  of  compensating  advantages  and  inconveni- 
ences seems  a  very  satisfactory  approximation  in  the  quiet 
of  the  cabinet,  for  theopposing  solutions,  the  losses  and  the 
gains,  balance;  but  in  practice,  it  introduces  an  im- 
portant element  of  risk  for  those  who  desire  security. 
It  seems  therefore  preferable  to  decide  that  one  does  not 

56  "Der  Kampf  urns  Recht." 


442  RENÉ   DEMOGUE  [Ch.XIII 

voluntarily  accept  this  system  of  an  amplitude  of  risks 
for  those  who  seek  security  by  making  possible  gains 
equal  losses. 

The  case  is  somewhat  different  when  the  guaranties 
given  to  a  person  present  certain  lacunae.  In  the  case, 
for  example,  of  a  mortgagee  who  may  suffer  loss,  through 
the  decrease  in  value  of  real  estate  or  by  the  washing  away 
of  a  part  of  the  property,  shall  his  mortgage,  to  com- 
pensate, be  extended  to  cover  all  increase  in  value  of 
the  land,  as  by  buildings  or  by  alluvion?  This  question 
can  hardly,  if  at  all,  be  answered  with  the  idea  alone  of 
dynamic  security,  for  who  could  venture  to  say  that  this 
slight  advantage  would  determine  a  loan? 

2:  Static  Security.  The  psychology  of  static  secur- 
ity is  different.  When  the  law  favors  static  security, 
that  is  to  say  is  intended  to  establish  a  lasting  situation, 
a  right  which  will  withstand  wind  and  weather,  the 
mental  state  of  the  owners  of  such  rights  should  be 
considered.  They  are  to  be  favored,  they  are  to  be  made 
to  feel  safe.  However,  as  I  have  already  remarked, 
nothing  in  this  world  seems  to  be  eternal,  at  least  in  its 
existing  form.  A  right  is  constantly  menaced  by  risks 
which  are  apt,  sooner  or  later,  to  prove  too  strong  for 
it:  physical  risks  of  loss  or  destruction;  economic 
risks  of  reduction  in  value,  of  insolvency;  social  risks, 
menaces  of  new  laws  or  of  revolutionary  movements; 
moral  risks  arising  from  the  danger  that  public  opinion 
will  become  hostile  to  a  certain  form  of  right.  These 
risks  seem  insignificant  when  the  right  is  created,  but 
they  are  revealed  on  all  sides  as  everything  changes 
about  the  right,  which  little  by  little  becomes  out  of 
harmony  with  its  surroundings.  Static  security  clamors 
loudly  for  repression  of  these  surrounding  circumstances, 
so  that  the  right  may  be  retained  with  all  its  advantages, 
may  escape  all  risks  as  far  as  possible  ;  and  as  the  desid- 


§251]  SECURITY  443 

eratum  of  absolute  security  is  so  hard  to  realize,  attempts 
are  made  to  surround  the  right  with  a  series  of  secondary 
fortifications  which  will  strengthen  its  principal  position. 
That  desideratum  may  never  be  reached.  Thus  con- 
servative governments  and  aristocracies,  which  do  not 
look  upon  the  security  of  their  fortunes  as  a  mere  means 
of  filling  a  great  social  rôle,  end  logically  in  a  régime  of 
social  and  moral  oppression  in  every  form.  They 
develop  an  insanity  for  security.  Some  defect  is  being 
constantly  discovered  in  the  armor,  which  must  be 
patched  with  a  new  piece.  So  the  creditor  wants  the 
proof  of  his  right  made  easy  to  him,  wishes  to  be  sure  that 
he  will  not  be  dispossessed  by  the  act  of  a  third  person 
or  even  by  his  own  negligence,  that  prescription  shall 
not  run  against  him,  and  that  the  debtor  be  bound  not 
only  in  his  property  but  also  in  his  person.  The  legis- 
lator may  be  impressed  by  these  desiderata,  but  he  should 
first  reflect  whether  there  are  not  more  important  reasons 
of  public  policy  to  be  kept  in  mind.  It  all  comes 
at  last  to  this  central  point:  the  relative  value  of 
interests. 

§  252.  Combining  the  Two  Forms.  Perhaps  at  bot- 
tom, admitting  the  importance  of  both  static  and  dynamic 
security,  the  wisest  course  is  to  make  a  place  for  both, 
as  institutions  of  two  different  orders,  or  to  include 
static  as  an  aspect  of  dynamic  security,  in  accordance 
with  the  notion  of  modern  western  civilizations.  In 
fact  static  security  may  be  thought  of  as  being  only  a 
vantage-point  from  which  to  act  more  freely  along  a 
given  line.  A  manufacturer  desires  the  security  in  his 
factory  which  results  from  a  stable  personnel,  so  that 
he  can  devote  himself  more  exclusively  to  the  develop- 
ment of  the  selling  end  of  his  business.  A  land  owner 
wants  to  be  sure  of  his  title,  in  order  to  feel  that  he  will 
not  lose  the  factory  which  he  builds  on  his  land.     Even 


444  RENÉ   DEMOGUE  [Ch.XIII 

from  a  social  point  of  view  a  proprietor  or  a  capitalist 
must  have  a  stable  fortune  to  permit  his  devoting  him- 
self in  tranquility  to  a  particular  social,  political,  or 
economic  work.  The  human  brain  is  only  capable  of 
a  limited  sum  of  activity,  and  certain  conditions  must  be 
present  to  render  that  activity  fertile.  Relative  security 
on  one  side,  and  on  the  other  a  field  open  to  the  risks 
of  enterprise,  seem  in  many  cases  a  desirable  solution 
of  the  difficulty  ^^  —  an  approximate  solution,  like  many 
others,  security  even  of  limited  extent  being  for  certain 
spirits  an  encouragement  to  inaction,  and  not  what  it 
should  always  be,  an  aid  to  work  with  greater  peace  of 
mind  in  another  field  of  action. 

Accordingly  laws  on  workmen's  compensation,  on 
unemployment,  on  retiring  pensions  for  workmen,  en- 
courage lazy  workmen  to  be  imprudent  ^^  or  negligent  or 
to  stop  work  as  soon  as  possible,  though  on  the  other 
hand  it  is  true  that  these  laws,  giving  a  sense  of  security 
to  the  man  who  works,  should,  from  the  point  of  the 
highly  skilled  workman,  be  ranged  among  those  of  dyn- 
amic security.  But  this  view  is  in  fact  inexact  because 
it  is  neutralized  by  another,  the  absolute  necessity  for 
workmen  to  earn  their  living.  An  idea  can  truly  have 
the  rôle  of  a  force-idea  only  so  far  as  it  faces  the  possi- 
bility of  a  certain  degree  of  freedom,  of  a  possible  play 
of  will  in  one  or  another  sense,  which  is  not  the  case 
here. 

§  253.  Perfect  Security  Unattainable  and  Undesirable. 
Finally  it  must  be  noted  that  this  security,  so  import- 
ant that  it  is  readily  made  the  basis  of  the  law,  is  a 
Utopian  ideal  to  a  certain  extent.  Not  only  do  natural 
events  put  obstacles  in  its  way,  but  it  has  not  even  been 

»•  This  is  why  we  have  defended  the  utility,  to  a  limited  extent,  of 
perpetual  contracts.     Sirey  1908.1.81. 

"See  Pierre  Hans,  "Les  Abus  dans  la  Législation  sur  les  Accidents 
du  Travail,"  in  Réforme  Sociale,  1910,  pp.  473,  558. 


§253]  SECURITY  445 

realized  in  the  domain  of  law.^^  In  a  certain  measure, 
justice  varies  with  judges;  doctrinal  systems,  though 
they  claim  most  often  to  be  inspired  by  logic  alone, 
are  no  less  frequently  divergent  because  of  the  same 
difficulty.  Even  under  the  mantle  of  logical  inter- 
pretation, the  judge  succeeds  in  doing  his  own  will  and 
in  turning  the  law. 

Thus  to  sacrifice  all  to  security  is  but  to  try  for  that 
which  can  never  be  completely  attained.  Perfect  security 
would  require  the  infinite  immobility  of  society  ^^;  and 
it  must  not  be  forgotten  that  all  institutions  rarely 
fulfill  their  first  functions,  but  serve  many  other  ends 
than  that  for  which  they  were  destined.^" 

Finally  the  desire  for  security,  strong  as  it  is,  is  not 
everything,  for  man  has  a  certain  taste  for  risk.  He 
finds  in  insecurity  a  certain  joy  of  strife  and  triumph .^^ 
Has  not,  in  truth,  the  desire  for  tranquility  been  exagger- 
ated by  the  calmness  of  most  of  those  who  work  on  the 
law,  though  it  does  not  follow  that  one  would  deny  the 
need  of  security  to  be  higher  than  the  desire  to  run  risks? 
Does  not  our  European  law  at  times  lack  something  of 
the  philosophy  of  the  "strenuous  life,"  a  philosophy 
more  virile  and  less  afraid  of  taking  chances? 

38  See  Ed.  Lambert,  "La  Fonction  Dynamique  de  la  Jurisprudence," 
cited  note  11  ante,  pp.  4531?.;  Mailleux,  "L'Exégèse  des  Codes  et  la 
Nature  des  Raisonnements  Juridiques,"  pp.  207ff. 

39£(f.  Lambert,  op  cit.  p.  456. 

*"  See  on  this  principle,  termed  that  of  the  heterogeny  of  ends.  De  Tour- 
toulon,  "Principes  Philosophiques  de  l'Histoire  du  Droit,"  p.  40. 

"  See  Guyau,  "Théorie  d'une  Morale  sans  Obligation  ni  Sanction," 
p.  209. 


446  RENÉ   DEMOGUE  [Ch.XIV 


CHAPTER  XIV 
EVOLUTION  AND  SECURITY 

HOW  SOCIAL  CHANGE  AFFECTS  RULES  OF  LAW  AND 
JURIDICAL  ACTS  — THE  PROBLEM  OF  THE  ANTINOMY 
OF  SECURITY  AND  SOCIAL  CHANGE:  (1)  THE  SYMMETRY 
OF  FORMALITIES;  (2)  A  FACTOR  THAT  CANNOT  BE 
SLIGHTED.  THE  INTEREST  OF  THIRD  PARTIES;  (3)  THE 
QUEST  OF  A  MIDDLE  TERM;  NON-RETROACTIVITY,  NON- 
PERPETUITY,  INDEMNIFICATION  — THE  PRINCIPLE  OF 
NON-RETROACTIVITY:  (1)  WITH  REFERENCE  TO  STAT- 
UTES; (2)  WITH  RESPECT  TO  PRIVATE  JURIDICAL  ACTS  — 
THE  PRINCIPLE  OF  NON-PERPETUITY  —  STATUTE  LAW, 
CASE  LAW,  AND  CUSTOMARY  LAW  — THE  PRINCIPLE 
OF  INDEMNIFICATION  — OTHER  REMEDIES  FOR  THE 
CONFLICT  BETWEEN  SECURITY  AND  CHANGE  — THE 
EQUILIBRIUM  OF  SECURITY  AND  CHANGE  — THE  SACRI- 
FICE OF  ONE  TO  THE  OTHER  MUST  NOT  OVERLEAP 
CERTAIN    BOUNDS. 

§  254.  How  Social  Change  Affects  Rules  of  Law  and 
Juridical  Acts.  One  of  the  safest  conclusions  which  can 
be  drawn  from  the  study  of  social  phenomena  is  that  they 
are  in  a  state  of  constant  transformation.  It  is  not  to  be 
supposed  that  the  continual  modifications  which  char- 
acterize the  past  are  not  to  be  renewed  in  the  future. 
First  of  all  we  observe  that  nothing  can  prevent  this 
process  of  social  becoming.  Whatever  be  the  limits 
within  which  it  is  attempted  to  restrain  the  thought 
and  the  activity  of  man,  there  is  always  a  time  when 


§254]  EVOLUTION  AND  SECURITY  447 

they  are  passed,  even  under  liberal  régimes.^  As  Mill 
says:  "Although  variations  in  character  existing  be- 
tween ordinary  individuals  neutralize  one  another  when 
they  are  considered  on  a  large  scale,  exceptional  indi- 
viduals do  not  neutralize  one  another. "^  It  is  true 
that  their  effect  may  be  neutralized  in  the  long  run  by 
a  series  of  oppositions  of  detail,  but  a  temporary  effect 
is  produced,  which  is  in  itself  considerable.  The  law, 
in  conformity  with  the  rule  of  constant  development 
which  governs  society,  must  bend  itself  to  certain  trans- 
formations; the  evolution  of  society  leads  irresistibly  to 
an  evolution  of  law.^ 

It  is,  furthermore,  essential  that  there  be  a  possibility 
of  better  adapting  the  rule  of  law  to  identical  phenomena; 
this  is  the  progress  of  law,  properly  so-called.  This 
posssibility  of  social  rearrangement  may  be  manifested 
in  various  ways:  first  of  all  by  the  principle  that  juri- 
dical acts,  whatever  they  are,  are  all  susceptible  of  modi- 
fication or  extinction. 

It  will  evidently  be  admitted  that  every  rule  of  law 
arising  from  statute,  contract,  or  a  unilateral  act  may 
be  abrogated  or  changed  at  a  given  time.  The  law, 
however,  varies  its  procedure  considerably,  in  accordance 
with  hypotheses,  where  the  application  of  this  principle 
is  involved.  This  comes  from  the  fact  that  the  interest 
of  social  rearrangement  conflicts  with  security,  whether 
static  or  dynamic.     These  two  interests  are  hard,  on 

1  Jhering  declares  even  that,  for  this  reason,  the  State  should  never 
bind  itself  absolutely.     ("Zweck  im  Recht,"  French  ed.  p.  278.) 

'  Quoted  by  Tarde,  "L'Opposition  Universelle,"  p.  326. 

•  As  Jhering  says:  "Law  is  the  Saturn  who  devours  his  own  children; 
it  can  rejuvenate  itself  only  by  breaking  with  its  past.  A  concrete  law, 
which,  because  it  has  once  existed,  claims  absolute  and  accordingly 
perpetual  existence,  is  like  a  child  who  strikes  his  own  mother;  it  derides 
the  idea  of  law  even  in  invoking  it,  for  the  idea  of  law  is  a  perpetual 
becoming,  and  what  has  come  to  pass  must  give  way  to  that  which  is 
coming  to  pass."  "Der  Kampf  ums  Recht,"  1906  éd.,  p.  9.  Compare 
Tanon,  op.  cit.,  p.  63;  Mail  leux,  "L'Exégèse  des  Codes,"  passim. 


448  RENÉ   DEMOGUE  [Ch.XIV 

some  points  impossible,  to  reconcile;  it  would  be  like 
reconciling  immobility  with  movement,  or  one  move- 
ment with  another  in  an  opposite  direction. 

Before  examining  how  these  changes  are  made,  let 
us  consider  one  question  by  way  of  preliminary:  what 
are  the  needs  and  sentiments  to  be  satisfied  by  changes 
brought  about  in  the  juridical  order? 

They  are  extremely  numerous  and  diverse.  First 
there  is  the  appearance  of  new  and  the  disappearance 
of  old  needs,  both  of  which  require  transformations  of 
law.  Inventions,  for  example,  necessitate  legal  changes 
for  their  utilization;  the  discovery  of  new  means  of 
transportation,  automobiles  and  aeroplanes,  makes 
necessary  a  new  regulation  of  the  respective  rights  of 
those  who  travel,  just  as  formerly  the  discovery  of 
railways  caused  a  modification  of  relations  between 
travelers,  between  carriers  and  shippers.  So  physical 
changes,  the  disappearance  of  forests,  reforestation,  vol- 
canic eruptions,  and  so  on,  necessitate  certain  alter- 
ations in  existing  laws. 

Racial  modifications,  also,  resulting  from  immigration, 
or  important  changes  in  density  of  population,  make 
former  rules  unsuitable.  Many  established  conditions 
must  be  altered  to  respond  to  transformations  in  public 
spirit,  in  morality  and  religion.  In  some  minds  and 
in  some  peoples  there  is  to  be  taken  into  account  an 
often  unreasonable  need  for  change,  which  is  only  a  need 
of  varying  a  moral  horizon  so  imperfect  that  it  becomes 
wearisome.  Economic  modifications  connected  with 
a  greater  intensity  of  production,  of  consumption,  or 
of  circulation,  may  make  old  rules  intolerable. 

How  can  these  two  interests  so  frankly  antagonistic 
be  reconciled:  the  requirement  of  security  satisfied, 
lending  all  its  force  and  rigidity  to  the  protective  system 
of  society  and  law,  and  the  need  of  change,  the  need  of 


§254]  EVOLUTION  AND  SECURITY  449 

that  suppleness  which  presupposes  a  reasonably  adapt- 
able legal  and  social  organization?^  At  first  sight  it 
seems  impossible  to  unite  in  a  harmonious  whole  tenden- 
cies so  divergent. 

§  255.  The  Problem  of  the  Antinomy  of  Security  and 
Social  Change.  1  :  The  Symmetry  of  Formalities. 
There  exist,  to  meet  these  difficulties,  buffer  institutions, 
as  yet  imperfect,  which  however  render  the  shock  be- 
tween the  two  colliding  forces  less  severe. 

The  first  idea  for  striking  a  balance  between  opposing 
views  appears,  as  frequently  happens,  to  have  been 
wholly  formal,  and  it  is  remarkable  that  we  are  still 
living  in  part  under  the  empire  of  so  archaic  a  theory. 
This  system  is  that  of  the  symmetry  of  the  forms  for 
the  creation  and  extinction  of  rights  —  their  modifi- 
cation being  really  a  partial  extinction.  There  is  no 
use  in  repeating  what  is  well  known,  that  the  Romans, 
in  primitive  times,  had  a  complete  symmetry  between 
the  formalities  necessary  to  create  and  to  extinguish  an 
obligation.  The  strange  fact  is  that  bur  modern  point 
of  view  is  a  little  but  not  very  different  from  theirs. 
Dominated  by  the  principle  of  static  security,  we  hold 
to  the  rule  that  every  juridical  act  can  be  recalled  only 
by  the  same  persons  who  collaborated  in  bringing  it 
into  being.  We  go  no  further;  the  consent  of  the  original 
actors,  persons  or  authorities  acting  ex  officio,  seems 
necessary,  and  sufficient,  to  annul  or  modify  the  juridical 
act.  This  double  principle  appears  to  be  very  just. 
It  is  connected,  indeed,  with  one  of  the  most  important 
interests  to  which  the  law  must  give  satisfaction,  but 
admits  what  this  interest  requires  only  so  far  as  it  is 
necessary;  nevertheless,    it   is   not   of    absolute    value 

4  This  question  appears  in  the  philosophy  of  the  sciences  in  a  slightly 
different  form;  that  of  the  "posse"  instead  of  the  "debere."  But  it 
is  at  bottom  the  same  problem.  See  J.  H.  Rosny  senior,  "Persistance 
et  Changement,"  Revue  du  Mois,  April  16,  1909. 


450  RENÉ   DEMOGUE  [Ch.XIV 

viewed  in  any  of  its  aspects.  The  principle  of  security, 
important  as  it  is,  may  be  confronted  by  other  principles 
of  equal  value,  and  again  it  may  be  invoked  in  cases 
to  which  it  was  never  intended  to  be  applied.  Respect 
for  juridical  acts,  and  for  contracts  in  particular,  has 
been  raised  by  many  to  the  rank  of  a  veritable  fetich. 
We  recognize  the  gravity,  the  capital  importance  of 
this  principle.  Regarded  in  itself  and  in  the  social  rôle 
which  it  may  play,  its  importance  is  so  evident  as  not 
to  be  worth  dwelling  upon.  We  desire,  on  the  other 
hand,  to  insist  particularly  on  the  opposition  between  it 
and  the  principle  of  adaptation  to  new  situations.  We 
thus  touch  on  the  fundamental  conflict,  or  at  least  on 
one  of  the  gravest,  which  concerns  the  law. 

Is  it  always  suitable  that  a  juridical  act  should  not 
be  changed  except  with  the  consent  of  all  who  took  part 
in  it?  The  question  may  be  presented  in  regard  to 
contracts  or  other  acts.  As  regards  contracts,  it  is  very 
natural  at  first  sight  that  they  may  not  be  modified  or 
abandoned  at  the  will  of  only  one  of  the  parties.  This 
is  required  by  the  idea  of  security.  But  this  idea  has 
unexpected  turns.  In  the  abstract  it  requires  that  a 
contract  mechanically  unfold  its  consequences.  But 
viewed  concretely,  security  may  demand  that  he  who 
does  not  get  his  due  under  a  bilateral  contract  may  put 
himself  on  the  defensive  and  himself  not  perform. 
Mutuality  of  performance  is  a  fair  requirement.  This 
is  the  basis  of  the  important  "exceptio  non  adimpleti 
contractus,"^  which  permits  the  avoidance  of  certain 
risks  by  the  maintenance  of  the  statu  quo,  in  spite  of 
any  anterior  obligation. 

It  may  be  necessary  to  modify  or  to  cancel  a  contract 
without  the  consent  of  all  contracting  parties  for  other 

6  For  more  details  see  "Des  Modifications  aux  Contrats  par  Volonté 
Unilatérale,"  RDC  1907.  p.  251. 


§255]  EVOLUTION  AND  SECURITY  451 

and  different  reasons.  If  it  be  desirable  that  the  con- 
tract should  meet  an  end  which  only  one  of  the  parties  is 
able  to  appreciate,  or  for  the  realization  of  which  he 
alone  is  able  to  judge  of  the  value  of  the  means  employed 
— or  if  the  act  pursues  several  purposes  at  once  (for  volun- 
tary action  is  indeed  always  complex) —  at  a  given 
moment  new  circumstances  will  cause  one  of  the  aims 
pursued  to  take  the  lead  of  the  others.  The  latter  end 
may  even  be  sacrificed  in  case  of  need,  as  it  happens 
when  it  becomes  necessary  to  modify  an  institution 
—  an  endowment  or  a  company  —  which  may  in  fact 
lose  part  of  its  former  nature  with  the  consent  of  all 
interested. 

All  this  finally  turns  around  a  general  idea,  the  limi- 
tation of  human  intelligence  —  a  limitation  which  is 
double,  internal  and  external  so  to  speak.  Man  is  so 
made  that  his  outlook  is  usually  limited  through  lack 
of  reflection,  of  penetration,  of  self-questioning;  his 
desires  are  left  more  in  the  form  of  an  indefinite  pro- 
toplasm than  clear,  closely  connected,  and  sharply  de- 
fined. In  the  second  place,  the  world  which  moves 
around  us,  though  to  what  extent  we  do  not  know,  is 
subject  to  laws  which  we  shall  never  wholly  understand, 
so  that  foreknowledge  of  social,  moral  or  even  physical 
happenings  is  impossible^;  the  keenest  intelligence  can- 
not foresee  all  that  will  come  to  pass,  and  risks  fore- 
seeing anything  but  that  which  actually  does  happen. 

Not  only  contracts,  but  other  juridical  acts,  unilateral 
acts,  may  be  recalled  without  the  consent  of  all  who 
participated  therein.  Let  us  leave  to  one  side  the  ques- 
tion whether  it  is  enough  if  all  participants  consent  — 
whether  third  parties  may  not  have  relied  on  the  act, 
and  may  not  so  deserve  protection.  It  is  here  sufficient 
to  state  that  in  certain  cases  it  may  be  useful  to  require 

6  See  Boutroux,  "De  la  Contingence  des  Lois  de  la  Nature." 


452  RENÉ   DEMOGUE  [Ch.XIV 

for  some  act  more  formality,  or  less,  than  for  the  act  of 
opposite  character  with  respect  to  the  idea  of  symmetry. 
There  may  be  reasons  having  to  do  with  the  gravity 
of  the  act  or  with  the  necessities  of  economy  of  time,  for 
allowing  the  destruction  or  transformation  of  an  act 
to  be  easier  than  its  accomplishment.  It  is  thus  with 
servitudes,  which  except  in  the  case  of  a  will  presuppose 
consent  for  their  creation,  yet  may  be  extinguished  by 
a  unilateral  revocation.  So  administrative  acts  may  be 
revoked  by  a  simpler  formality  than  that  marking  their 
promulgation.'' 

The  factor  of  social  change,  as  showing  the  necessity 
that  the  obligations  of  everybody  be  subject  to  modifi- 
cation, is  important,  and  rightly  so.  In  the  matter  of 
contracts,  and  juridical  acts  of  longest  duration,  it  be- 
comes especially  so.  Nothing  changes  more  easily 
than  statutes  intended  by  their  own  expressions  to  be 
eternal,  for  nothing  runs  greater  risk  of  becoming  out 
of  date,  of  accommodating  itself  badly  to  new  circum- 
stances. There  are  even  permanent  organisms  to  change 
them,  parliaments.  Companies,  partnerships,  even 
foundations,  find  it  hard  to  modify  their  regulations, 
having  ordinarily  a  shorter  life  than  States.  As  for 
ordinary  juridical  acts  whose  duration  is  inconsiderable, 
they  are  considered  almost  unchangeable  without  the 
consent  of  all  the  principal  persons  interested. 

2:  A  Factor  that  Cannot  be  Slighted,  the 
Interest  of  Third  Parties.  The  question  which  we 
are  studying  has  still  another  aspect.  Is  it  quite  satis- 
factory if  the  same  forms  have  been  used,  the  same 
consents  obtained  to  modify  or  to  annul  a  juridical 
act,  which  were  employed  in  its  inception?  We  do  not 
think  so.  We  believe  that  this  is  a  wholly  formal  view 
of  a  problem  which  must  be  more  thoroughly  studied. 

'  See,  for  the  religious  orders,  Law  of  July  1 ,  1901,  art.  13. 


§255]  EVOLUTION  AND  SECURITY  453 

It  is  an  error  to  believe  that  an  act  interests  only  the 
parties  to  it.  "Conventions  take  effect  only  between 
the  contracting  parties,  they  neither  injure  nor  profit 
third  persons,"  article  1165  of  the  French  Civil  Code, 
is  not  alone  only  true  in  a  certain  sense, ^  but  the  more 
general  principle  must  be  adopted  that  legal  acts  in- 
terest third  persons  to  a  very  considerable  extent. 
This  is  true  of  contracts.  Am  I  not  interested  in 
knowing  whether  my  debtor  is  borrowing  of  others, 
whether  the  manufacturer  to  whom  I  am  giving  orders 
has  other  customers,  or  whether  I  have  a  monopoly 
of  his  products?  Does  it  not  interest  me  whether 
the  property  which  I  have  bought  is  leased  or  free  for 
occupancy? 

The  idea  that  the  contracts  of  third  parties  do  not 
interest  us,  is  one  of  those  extreme  simplifications  of 
facts  which,  true  in  very  many  cases,  are  often  false. 
Like  all  simple  ideas,  which  may  work  such  mischief, 
it  must  be  viewed  with  great  suspicion. 

How  much  truer  is  this  of  unilateral  acts- — of  all  those 
included  in  private  law;  renunciation  of  servitudes, 
waiver  of  limitations,  acceptance  of  a  succession,  and 
others!  Such  acts  are  of  the  highest  interest  to  third 
parties,  so  they  are  generally  declared  irrevocable, 
because  so  many  third  parties  may  have  relied  upon 
them  and  counted  upon  their  continuance.  This  is  a 
requirement  of  security,  to  which  all  idea  of  social  trans- 
formation is  necessarily  sacrificed. 

On  the  other  hand,  by  a  strange  peculiarity  which 
can  only  be  explained  historically,  as  a  survival  of  the 
old  symmetry  of  the  forms  for  the  creation  and  extinction 
of  juridical  situations  —  as  a  survival  of  the  old  idea  of 
the  chief  of  the  clan  or  of  the  absolute  sovereign,  who 

8  See  especially  "Des  Effets  Juridiques  des  Actes  Juridiques  à  l'Égard 
des  Tiers,"  thesis  by  Juille,  Lille  1904. 


454  RENÉ   DEMOGUE  [Ch.XIV 

does  as  he  pleases  in  spite  of  circumstances  ^  —  it  is 
universally  admitted  that  new  administrative  and  legis- 
lative acts  may  supervene  and  modify  everything  which 
has  previously  been  done  by  the  same  means.  A  mayor, 
by  a  police  regulation,  has  created  a  lawful  situation 
depending  on  which  money  has  been  spent,  commercial 
operations  entered  into.  The  regulation  is  none  the 
less  revocable  at  pleasure.  Under  the  name  of  acts  of 
the  public  power,  administrative  acts,  and  above  them 
statutes,  remain  as  absolute  as  was  the  good  pleasure 
of  the  chief.  The  product  is  differently  made,  by  more 
visible  methods,  but  it  is  notwithstanding  identical. 
The  possible  statute  of  to-morrow  which  may  hinder 
or  help  our  enterprises,  while  a  ground  of  hope  for  some, 
is  a  direct  attack  on  security,  either  static  or  dynamic. 
Is  it  necessary  to  do  more  than  to  state  the  known  fact 
that  the  menace  of  a  new  tax,  the  submission  of  a  bill 
modifying  the  extent  of  mining  rights,  or  employers' 
liability,  or  imposing  measures  of  preventive  hygiene, 
makes  trouble  for  the  persons  who  have  counted  on  the 
state  of  facts  arising  under  former  laws  and  have  acted 
in  the  expectation  of  its  continuance? 
3:  The   Quest  of   a    Middle    Term:    Non-Re- 

TROACTIVITY,  NoN-PeRPETUITY,  INDEMNIFICATION. 
How  can  we  settle  the  serious  conflict  here  arising  be- 
tween security  and  evolution?  Here,  as  elsewhere,  the 
problem  cannot  be  satisfactorily  answered  in  every  case. 
Security,  a  subjective  sentiment,  is  evidently  variable 
according  to  time  and  individuals,  and  to  permit  inno- 
vations only  where  this  sentiment  will  not  be  wounded  is 
to  treat  as  settled  a  question  of  individual  psychology 
which  can  be  known  only  by  often  highly  approximative 
general  suppositions,  is  to  take  into  consideration  senti- 

•  See  on  the  earlier  characteristics   of  statute   law,   Maxime  Leroy, 
"La  Loi." 


§255]  EVOLUTION  AND  SECURITY  455 

ments  which  may  be  exaggerated  by  fear,  itself  a  fact 
but  frequently  contrary  to  exterior  reality;  and  is 
finally  to  admit  the  application  of  new  statutes  fre- 
quently with  so  much  delay  that  the  desire  for  change 
is  not  satisfied. 

What  is  the  mean  which  will  come  near  to  contenting 
all  these  opposed  interests?  It  seems  to  me  to  be  found 
in  putting  statutes,  in  certain  connections,  on  the  same 
footing  as  other  juridical  acts,  in  treating  them  as  juri- 
dical acts  like  the  others,^"  and  in  applying  to  them,  as 
to  the  others,  certain  principles,  those  of  non-retro- 
activity,  non-perpetuity,  and  indemnification. 

A  statute  is  at  bottom  but  a  juridical  act,  like  any 
other,  though  this  idea  must  evidently  be  carefully 
construed.  I  mean  that  a  statute,  like  any  juridical 
act,  owes  its  force  to  preceding  organizations,  to  an- 
terior states  of  fact  and  of  mind.  There  is  more  power 
in  these  states  of  fact  and  of  mind  because  of  the  idea 
which  we  now  have  of  the  sovereign  law.  Absolute 
power  has  passed  from  the  hands  of  the  chief  of  the 
clan  to  the  King,  from  him  to  the  national  assembly; 
we  create  in  our  minds  a  hierarchy  of  legal  authorities 
at  the  head  of  which  we  put  the  law  —  that  is  the  whole 
story.  But  a  statute  is  only  a  fact,  a  text  which  we  in 
modern  times  so  surround  with  the  strength  of  our 
respect  that  it  is  hard  to  overcome  by  force.  Except 
for  resolute  men  who  have  nothing  to  lose  and  who  have 
the  courage  to  take  every  risk,  as  is  sometimes  the  case 
with  revolutionary  parties,  it  is  invincible  to  direct 
attack,  but  it  is  much  easier  to  capture  by  ruse.^^  It 
maintains  itself  nevertheless  at  the  level  necessary  for 
practical  activity  just  about  to  the  extent  demanded 

•»  Compare  Duguii,  "Le  Droit  Individuel,  le  Droit  Social,"  p.  44. 
11  See  Tarde,  "Les  Transformations  de  l'Impunité,"  in  Réforme  Sociale, 
November  16,  1888. 


456  RENÉ   DEMOGUE  [Ch.XIV 

by  habit  and  traditional  morals;  it  preserves  a  force 
which  appears  very  great  but  is  relative  in  its  application. 
Three  points  will  therefore  successively  engage  our 
attention  : 

(1)  The  question  of  non-retroactivity. 

(2)  That  of  perpetuity. 

(3)  That  of  the  right  to  commit  injury  on  payment 
of  damages. 

§  256.  The  Principle  of  Non- Retroactivity.  1  :  With 
Reference  to  Statutes.  Admitting  that  any  juridical 
act  may  sometimes  be  found  to  be  changed  or  annulled 
without  the  consent  of  all  interested,  often  even  of  those 
chiefly  interested,  it  has  become  necessary  to  find  a 
way  to  reconcile  this  interest  of  social  change  with  the 
need  for  security.  Thus  has  arisen  the  theory  of  the 
non-retroactivity  of  laws  and  of  administrative  acts; 
and  thus  also,  the  theory  scarcely  sketched  out  as  yet 
of  the  non-retroactivity  of  private  juridical  acts. 

The  formula  put  forward  by  the  written  law  to  recon- 
cile these  two  opposing  elements,  the  need  o  security  and 
the  need  of  promulgating  new  texts,  is  well  known: 
"The  law  takes  effect  only  for  the  future,  it  has  no  retro- 
active effect. "^2  It  is  not  surprising  that  legal  science 
has  not  yet  succeeded  in  constructing  a  practical  system 
which  will  satisfy  both.  Very  many  persons  act  or  are 
preparing  to  act  on  every  rule  of  law.  My  right  to 
build  on  my  own  land  induces  me  not  to  buy  a  house 
even  if  it  is  offered  cheap,  as  I  expect  to  construct  one 
of  my  own.  Naturally  any  different  rule  of  law  that 
were  to  be  promulgated,  forbidding  construction,  for 
example,  in  certain  wet  localities  or  near  a  factory,  so 
as  to  apply  to  my  land,  is  certain  to  affect  my  interests. 
Accordingly,  even  if  the  law  applies  only  to  the  future, 
it  is  going  to  attack  my  security,  for  under  the  sway  of 

1'  Article  2,  French  Civil  Code. 


§256]  EVOLUTION  AND  SECURITY  457 

the  former  law  I  already  had  a  kind  of  mortgage  on  the 
future. 

The  sole  formula  which  would  be  satisfactory  to  both 
sides  would  be  one  which  took  into  consideration  sub- 
jective security.  I  may  not  have  have  known  of  the 
existence  or  of  the  extent  of  application  of  a  legal  regu- 
lation. It  is  of  no  importance  to  me  to  lose  the  right 
to  build  if  I  never  thought  of  building  myself  or  of  selling 
my  land  for  that  purpose,  so  that  the  law  which  deprives 
me  of  it  takes  away  nothing  which  I  cared  for  or  on  which 
I  counted.  On  the  other  hand,  if  relying  on  the  present 
law  I  had  planned  to  build  or  to  sell,  the  new  law  affects 
me.  A  merchant  who  has  retired  with  an  income  of 
two  thousand  dollars,  which  he  calculates  will  be  enough 
for  his  household  with  forty  dollars  a  year  taxes,  will 
be  obliged  by  a  new  tax  law  raising  his  tax  to  eighty 
dollars  either  to  go  to  work  or  to  reduce  his  style  of  living. 
Such  a  subjective  criterion  cannot  be  applied  in  practice; 
it  is  too  vague  in  extent,  too  delicate  in  application. 
It  would  also  so  delay  the  satisfaction  of  the  need  for 
social  rearrangement  that  it  would  be  unfortunate  on 
that  account  as  well. 

In  practice,  accordingly,  very  unsatisfactory  formulas 
are  adopted,  as:  the  new  law  does  not  affect  rights  but 
only  hopes;  "tempus  regit  actum";  a  right  may  not 
be  suppressed,  but  certain  advantages  flowing  from  it 
may  be  cut  off  —  as  if  a  right  would  not  be  gravely 
impaired  if  its  content  were  taken  away!  These  are  all 
bad,  wholly  and  necessarily  bad  solutions  of  a  difficulty 
which  seems  insoluble.  No  more  than  approximations 
can  be  discovered,  but  this  should  certainly  not  dis- 
courage research,  for  there  are  evidently  degrees  in 
approximation,  and  diverse  formulas  may  be  presented 
for  special  cases  as  sufficiently  satisfactory.^^ 

13  The  old  theory  of  non-retroactivity  which  prevailed  during  the 
1800s  dated  from  an  epoch  in  which  security  was  the  principal  con- 


458  RENÉ   DEMOGUE  [Ch.XIV 

The  solutions  generally  accepted  are  connected  espe- 
cially with  the  idea  of  static  security  :  he  who  by  virtue 
of  an  old  law  has  acquired  a  certain  situation  of  fact 
should  keep  it,  even  if  a  new  law  forbids  such  acquisitions. 
If  I  have  made  a  will,  or  done  any  other  act  under  the 
empire  of  the  existing  law,  the  act  remains  valid  even  if 
a  new  statute  prescribes  a  new  form.  An  inheritance 
devolved  is  not  affected  by  a  change  in  the  law  of  suc- 
cessions; an  acquired  right  is  not  lost  even  though  the 
way  in  which  it  was  acquired  is  made  illegal,  even  it  it 
was  acquired  by  the  exercise  of  a  right  later  suppressed, 
as  for  example  by  a  change  in  the  legal  rate  of  interest 
or  in  the  method  of  assessing  damages. 

On  the  other  hand,  if  an  individual  is  menaced  in  his 
dynamic  security,  he  profits  no  more  by  the  old  law.  If 
I  had  expected  to  avail  myself  of  my  right,  to  build  on 
my  land,  to  transform  a  building  into  a  factory,  I  am 
at  the  mercy  of  a  new  law  regulating  construction,  the 
installation  of  a  factory,  or  obligations  towards  neighbors. 
I  had  counted  on  doing  something  under  the  old  law; 
this  I  can  no  longer  do,  and  I  shall  be  more  or  less  in  the 
position  of  one  contracting  party  who  sees  the  other 
withdraw  his  promise.^* 

sideration.  Thus  it  was  said  that  a  new  law  could  not  touch  acquired 
rights  but  only  hopes,  except  that  there  was  great  difficulty  in  distinguish- 
ing these  terms  in  concrete  cases.  In  our  day  the  theory  of  evolution  has 
deeply  impressed  the  minds  of  lawyers;  security  is  less  considered,  and 
attention  is  given  to  smoothing  the  way  for  necessary  transformations. 
Thus  the  tendency  is  to  say  that  a  new  law  should  respect  the  facts  of 
the  past,  but  may  dispose  of  the  future  at  will.  See  V areilles-Sommières, 
"Une  Théorie  Nouvelle  sur^la  Non-Retroactivité  des  Lois,  RC  1893, 
pp.  444ff.;  Planiol,  "Traité  Élémentaire  de  Droit  Civil,"  vol.  i,  no.  256. 
Compare  my  note  in  Sirey  1910.2.25.  It  is  certain  that  this  is  a  blow 
to  security.  No  one  of  the  theories,  old  or  new,  solves  the  problem 
satisfactorily,  which  from  certain  points  of  view  looks  like  that  of  squar- 
ing the  circle.  From  this  sharp  conflict  between  irreconcilable  interests 
arises  an  obscurity  as  to  these  questions  not  apt  to  disappear.  Doubt- 
less it  will  only  be  cleared  up  by  numerous  distinctions. 

i«  Compare  my  note  in  Sirey  1910.2.25.  It  is  curious,  in  view  of  the 
progressive  development  of  the  spirit  of  business,  that  new  theories  on 


§256]  EVOLUTION  AND  SECURITY  459 

But  the  limit  between  static  and  dynamic  security 
is  not  easy  to  establish.  In  the  complexity  of  actual 
life  they  contain  notions  which  separate  or  intertwine, 
according  to  the  particular  case  in  view. 

Further,  there  is  the  practical  idea  that  while  the 
operation  of  new  statutes  may  be  delayed,  it  should  not 
be  for  too  long.  That  mighty  lord,  the  law,  will  tolerate  a 
certain  slowness  in  obedience  to  his  orders,  but  not  too 
much.  For  example,  have  measures  on  hygiene  and 
safety  of  workmen  been  put  into  effect  solely  in  regard 
to  factories  opened  since  the  law  was  passed?  Behind 
all  this,  there  is  a  right  asserting  itself  very  vigorously, 
because  it  considers  itself  as  representing  a  higher  good, 
but  this  latter  is  essentially  complex  and  changeable, 
and  it  cannot  be  denied  that  it  does  violence  to  security. 

Security,  in  the  face  of  social  development,  examined 
from  the  point  of  view  of  retroactivity,  appears  then 
not  as  a  mass  which  can  be  carved  into  a  sharp-edged 
form,  but  as  something  indefinite,  whose  vague  outlines 
cannot  be  suitably  adapted  to  the  need  of  realizing 
new  ideas. 

2:  With  Respect  to  Private  Juridical  Acts. 
The  question  of  retroactivity  does  not  concern  legis- 
lation alone,  but  arises  also  with  regard  to  private 
juridical  acts.  When  one  juridical  act  follows  another, 
whether  to  cancel  or  to  consolidate  it,  the  law  has  to 
consider  whether  the  later  act  will  take  effect  simply 
for  the  future  or  retroactively. 

The  security  of  transactions  requires  that,  in  relations 
with  interested  third  parties,  new  juridical  acts  should 
not  be  able  to  take  effect  from  the  date  of  those  which 
they  modify  or  destroy,  or  from  any  previous  date  whatso- 

non-retroactivity  of  laws  take  less  account  of  dynamic  security.  This 
is  due  to  the  fact  that  the  rapid  application  of  new  laws  seems  even  more 
favorable  to  economic  activity.  See  the  new  Swiss  Code,  final  title,  and 
the  Swiss  Federal  Code  of  Obligations,  arts.  S82ff. 


460  RENÉ   DEMOGUE  [Ch.XIV 

ever.  This  system  is  that  of  article  1338  of  the  Civil  Code 
for  confirmatory  acts,  and  of  article  790  for  repudiations 
of  renunciations  of  successions. 

From  another  point  of  view,  however,  the  necessity 
for  adaptation  to  new  circumstances,  which  is  only  a 
form  of  social  change,  requires  that  these  acts  shall 
produce,  to  a  certain  degree,  an  effect  against  third  parties. 

Is  no  compromise  possible  between  the  interest  of 
some  in  being  able  to  indicate  at  the  beginning  that  a 
subsequent  act  will  take  effect  at  a  date  fixed  from  the 
beginning,  even  against  third  parties,  and  the  interest 
of  others  in  defending  themselves  against  this  retro- 
activity? 

Before  attacking  this  problem,  let  us  admit  that  there 
is  a  limit  beyond  which  retroactivity  cannot  be  pushed. 
By  means  of  retroactivity  one  act  perfects  (a  condition, 
an  acceptance),  nullifies  (a  fatal  defect,  a  withdrawal), 
or  completes  (a  confirmation,  publication);  another 
cannot  be  made  retroactive  as  regards  third  parties 
beyond  the  date  of  the  original  act  with  which  it  is  con- 
nected. Between  the  parties,  anything  may  be  admitted, 
provided  that  other  principles  be  not  involved,  as  for 
instance  that  of  respect  for  the  will,  with  which  is  bound 
up,  among  other  matters,  capacity.  But  where  third 
parties  are  concerned,  to  touch  acquired  rights,  rights 
based  on  others  which  were  pure  and  simple,  is  to  injure 
security  without  any  apparently  good  reason  for  so 
doing.  Thus  a  conditional  instrument,  for  instance, 
may  retroact  at  the  furthest,  after  the  condition  is  exe- 
cuted, to  the  date  of  its  signature. 

It  may,  however,  be  left  to  the  parties  to  say  that 
their  juridical  act,  or  his  if  it  be  unilateral,  shall  be 
performed  in  such  a  manner  as  to  be  plastic,  rather  than 
rigid  —  conditional,  annullable,  revocable;  and  they 
may  say  that  this  situation  shall  continue  for  a  longer 


1256]  EVOLUTION  AND  SECURITY  461 

or  shorter  time.  The  law  will  protect  this  right.  The 
Civil  Code  even  admits  that  a  condition  may  remain 
for  centuries  in  suspense,  since  conditional  rights  are 
not  subject  to  limitation. ^^  This  makes  it  possible  to 
say  that  the  actual  situation  will  not  be  determined 
till  later  ;  but  as  the  consequence  would  be  troublesome 
on  the  whole,  being  an  infringement  of  security,  which 
calls  for  clear  and  exact,  not  indefinite  situations,  it  is 
rationally  admissible  only  to  a  limited  extent. 

The  conditions  of  the  limit  to  be  established  may 
first  of  all  be  found  in  the  idea  that  retroactivity  is 
useful,  if  at  all,  only  to  insure  the  repayment  of  the 
capital  and  not  to  safeguard  accessory  things  —  profits, 
freedom  to  occupy  a  leased  building,  and  so  on.  Beyond 
this  point,  retroactivity  is  neither  desired  nor  advis- 
able.i« 

Thus  restricted,  is  retroactivity  admissible  in  a  private 
act  resulting  merely  from  the  will  of  individuals,  as  in 
the  case  of  conditions,  or  from  the  will  of  the  law  com.- 
bined  with  that  of  individuals,  as  in  the  cases  in  which 
an  heir  who  has  received  property  from  his  ancestor  is 
obliged  to  include  it  in  the  estate  for  distribution?  We 
are  here  in  the  thick  of  the  old  conflict  between  static 
and  dynamic  security.  The  latter  urges  that  third 
parties  be  protected;  the  former  that  the  contracting 
parties  in  the  case  of  a  condition,  that  the  heirs  in  the 
case  suggested,  the  donors  in  cases  of  revocation  of 
gifts,  the  parties  to  any  annulled  instrument,  be  pro- 
tected. 

The  written  law  has  been  vaguely  conscious  of  this 
difficulty,  as  clearly  appears  from  the  hesitation  with 

15  French  Civil  Code,  art.  2257. 

16  See  my  "Etudes  des  Droits  Eventuels,"  87ff.  Compare  Chausse, 
"Rétroactivité  de  la  Condition,"  RCL  1900,  p.  542,  who  reaches  the 
same  conclusions. 


462  RENÉ   DEMOGUE  [Ch.XIV 

which  it  has  treated  the  effect  on  third  parties  of  cases 
affecting  successions  ^"^  and  entails  ^^  and  of  gifts.^^ 

A  compromise  may  be  attempted  by  estabHshing  a 
form  of  publicity,  and  by  providing  that  only  when  it 
has  been  observed  can  action  be  taken  against  third 
parties,  but  it  will  remain  to  be  seen  whether  other 
measures  will  not  be  necessary. 

There  is  another  method  of  reconciliation  which  may 
be  used  concurrently  with  this:  it  consists  in  proceeding 
against  third  parties  only  when  satisfaction  cannot  be 
had  of  the  other  party.  This  procedure,  which  amounts 
to  preferring,  in  certain  cases,  execution  by  equivalent 
to  execution  in  nature,  we  will  later  take  up.  At  present 
it  is  enough  for  us  to  mention  the  utility  which  it  would 
have  in  this  connection  through  the  adoption  of  a  rule 
allowing  action  against  third  parties  only  after  unsatisfied 
execution  against  the  property  of  the  debtor  according 
to  article  930  of  the  Civil  Code. 

§257.  The  Principle  of  Non-Perpetuity.  Another 
way  of  reconciling  the  interests  of  security  with  new 
needs  which  call  for  satisfaction,  is  to  allow  to  juridical 
acts,  and  even  to  statutes,  a  limited  duration  only. 

The  question  of  the  perpetuity  of  obligations,  and 
in  a  general  way,  of  rights,  seems  to  have  been  only 
recently  raised.^"  That  of  the  perpetuity  of  statutes  is 
yet  unexplored. 

It  is  very  certain  that  the  naïve  and  robust  faith  of 
the  ancients  led  to  perpetuities,  just  as  to-day  pride 
prevents  our  seeing  how  fragile  and  temporary  are  our 
legislative  combinations.  Would  it  not  be  more  suit- 
able to  pass  laws  for  a  limited  length  of  time,  but  irre- 

"  Civil  Code,  arts.  859ff.,  929,  930. 
18  Civil  Code,  arts.  1069ff. 
"  Civil  Code,  arts.  958ff. 

20  See  note  hy  Barthélémy,  Dalloz  1907.1.338,  that  by  Planiol,  Dalloz 
1906.1.249,  and  my  note  in  Sirey  1908.1.81. 


§257]  EVOLUTION  AND  SECURITY  463 

vocable  during  that  time,^^  and  to  authorize,  as  a  general 
rule,  contracts  only  of  limited  duration? 

The  legislation  of  the  Revolution  appears  to  have 
been  the  first  in  which  this  second  question  was  con- 
sidered.^^ If,  however,  temporary  laws  are  few,^^  tem- 
porary international  treaties  are  more  common.  In 
any  case,  practice  has  actually  put  the  question  of  tem- 
porary legislative  acts  unfortunately  on  an  ill-chosen 
ground,  as  such  temporary  laws  have  often  been  laws 
of  exception  in  the  bad  sense  of  the  word.-'* 

To  make  a  rational  use  of  temporary  laws,  several 
desiderata  would  have  to  be  satisfied  at  the  same  time. 
They  should  not  last  too  long  or  too  short  a  time,  and 
they  should  be  renewed  long  enough  in  advance  for 
people  to  know  beforehand  what  to  expect,  thus  avoiding 
that  uncertainty  which  is  a  bar  to  business.  With  this 
reserve,  laws  could  be  passed  at  successive  intervals 
or  in  the  method  provided  in  the  Spanish  Civil  Code, 
which  is  better  than  simple  periodic  revisions.  ^^ 

Must  we  also  admit  that  all  contracts,  or  rather  that 
all  private  juridical  acts,  should  be  subject  to  revision 
or  to  renewal  at  fixed  periods?  This  arrangement 
would  be  admissible  for  contracts  or  for  acts  entailing 
long  continued  relations.  There  would  be  no  obstacle 
to  providing  for  periodical  revisions,  for  long  terms, 
of  the  charters  and  by-laws  of  companies,  of  acts  of 
endowment,    or    of    contracts    of    partnership.-'^     Such 

"  This  would  answer,  better  than  the  present  situation,  to  the  need 
of  society  not  to  rest  on  wholly  provisional  rules.  See  on  this  very  real 
need,  "L'Evolution  du  Droit,"  p.  82. 

22  See  the  Law  of  December  18-19,  1790,  art.  1. 

2s  See  nevertheless  the  Law  for  Algeria  of  Dec.  21,  1907,  and  that  of 
Dec.  24,  1904,  on  disciplinary  powers  in  mixed  communes. 

2<  Notably  the  Law  of  Dec.  20,  1915,  on  prevost's  courts. 

2s  Spanish  Civil  Code,  additional  disposition,  and  introduction  to  the 
French  translation  by  Levé,  p.  xxxi. 

26  The  strife  between  security  and  adaptation  is  so  sharp  in  regard 
to  long  continued  acts,  that  it  is  impossible  to  regulate  them  without 


464  RENÉ   DEMOGUE  [Ch.XIV 

a  plan  would  allow  the  changes  required  by  evolution, 
but  would  not  be  too  serious  an  infraction  of  security, 

It  cannot  be  questioned  that  acts  thus  limited  in 
duration,  but  renewable,  would  involve  an  expenditure 
of  supplementary  activity,  and  would  thus  be  contrary  to 
the  idea  of  economy  of  energy  ;  and  besides,  such  renewals 
and  modifications  of  contracts  and  laws  might  take 
place  in  moments  of  irrational  enthusiasm  for  some 
particular  idea.  Opinion  may  be  in  bad  shape  for  the 
revision  of  one  or  another  law.^''  But  are  not  these 
inconveniences,  which  we  do  not  minimize,  often  less 
than  those  arising  from  legislative  instability,  and 
from  the  existence  of  an  archaic  law  protected  by  the 
forgetfulness  of  the  legislator?  In  any  case,  observe 
that  our  solution,  which  in  spite  of  all  seems  preferable, 
has  the  advantage  of  suppressing  the  difficult  question 
whether  laws  and  administrative  acts  are  abrogated  by 
non-usage.  To  admit  the  affirmative  is  to  run  counter 
to  security,  for  how  can  it  be  known  what  non-usage 
is  sufficient?  But  to  reject  repeal  by  non-usage  would 
admit  statutory  anachronisms,  and  would  deliver  a 
blow  against  subjective,  in  the  pretended  interest  of 
objective,  security,  A  system  which  would  obviate  this 
difficulty  has  some  advantage. 

§  258.  Statute  Law,  Case  Law,  and  Customary  Law. 
The  necessity  for  making  law  respond  to  new  ideas  and 
new  needs  brings  up  the  grave  question  of  customary 
law  and  of  the  rôle  of  judicial  decision.  If  it  be  ad- 
mitted that  law  should  bend  to  new  exigencies,  custom 
may  readily  be  allowed  to  rule  a  part  of  human  activity, 

taking  it  into  account.  Recall  the  famous  discussions  over  the  revision 
of  charters  of  companies.  As  to  endowments,  note  the  labors  of  the 
Société  d'Études  Legislatives  (see  the  report  oï Lam aude.  Bulletin,  1909, 
pp.  302ff.  ;  observations  of  Saleilles,  pp.  319ff.  ;  final  draft,  p.  445;  and 
Jean  Escarra,  "Les  Fondations  en  Angleterre,"  pp.  205fï. 

"  See  Planiol,  "Livre  du  Centenaire  du  Code  Civil,"  "Inutilité  d'une 
Révision  Générale  du  Code  Civil,"  vol.  ii,  v.  960. 


§258]  EVOLUTION  AND  SECURITY  465 

and  the  work  of  the  judges  in  clearing  up  uncertain 
and  obscure  points  may  be  looked  on  with  favor.  The 
remarkable  services  which  this  latter  can  render  in 
assuring  a  deliberate  progress  of  law  by  filling  in  gaps 
and  by  correcting  solutions  cannot  be  denied.  Such  a 
system,  though,  is  in  absolute  opposition  to  the  principle 
of  security.  A  choice  must  be  made  between  the  two, 
and  we  see  no  basis  for  a  complete  reconciliation.  Recon- 
ciliation is  possible  only  in  very  unsatisfactory  fashion: 
a  system  of  judicial  law  established  under  the  empire 
of  old  ideas  on  certain  special  points,  when  new  ones 
are  submitted  later,  may  settle  them  in  accordance  with 
a  new  spirit.  The  result  will  be  a  certain  disparity, 
but  satisfaction  will  be  given  to  old  and  new  ideas.  It 
must  not  be  forgotten,  however,  that  juridical  decisions 
are  only  one  aspect  of  law  —  the  law  in  judiciary  strife^^ — 
so  that  the  law  of  practising  lawyers  is  uncertain  on  all  the 
new  questions  that  may  possibly  be  raised. 

Here  are  the  elements  for  the  solution  of  the  famous 
conflict  between  the  classic  and  the  modern  methods  of 
interpretation  ^^  —  between  statute  law,  case  law,  and 
custom.  It  is  very  true  that  these  modern  methods, 
whose  value  we  do  not  misconstrue,  have  the  incon- 
venience of  not  giving  the  same  security  as  the  old, 
since  they  rely  less  on  pure  logic  ^°  and  lay  the  greatest 
stress  on  adaptation.  Therefore  it  sounds  to  us  more 
like  praise  than  blame  to  remark,  as  is  often  done,  that 
the  defenders  of  these  innovations,  after  giving  every 

"  Picard,  "Le  Droit  Pur,"  p.  65. 

2»  It  is  almost  needless  to  cite  the  famous  work  of  Gêny,  "Méthode 
d'Interprétation  en  Droit  Privé  Positif."  Compare  Van  der  Eycken, 
"Méthode  Positive  d'Interprétation";  Maf/^eMx,  "L'Exégèse  des  Codes 
et  la  Nature  du  Raisonnement  Juridique";  Estnein,  "La  Coutume  doit- 
elle  être  reconnue  comme  Source  de  Droit?"  Bulletin  of  the  Société 
d'Études  Législatives,  1905,  p.  535.  [This  subject  is  a  main  topic  in 
vol.  ixof  the  Modern  Legal  Philosophy  Series.  —  Ed.] 

3»  On  the  utility  of  logic  from  this  point  of  view:  Meynial,  "La  Logique 
dans  la  Formation  du  Droit,"  RMM  1908,  p.  186. 


é66  RENÉ   DEMOGUE  [Ch.XIV 

liberty  to  the  judge,  and  laying  great  importance  on 
doctrine,  finally  fall  back  on  the  statutes.^^  Yes,  as 
Leroy  says,  theory  seeks  to  destroy  itself  and  to  consoli- 
date its  results  all  at  once;  statute  law  appears  the 
invincible  rear  guard  which  definitely  occupies  the 
positions  fully  conquered  by  judicial  law.  Does  not  this 
apparent  opposition,  however,  take  into  consideration, 
in  a  happy  manner,  the  needs  for  security  and  for  con- 
stant change?  One  may  call  for  a  greater  legislative 
activity  even  while  one  approves  a  bold,  innovating 
case  law.  One  does  not  exclude  the  other,  for  we  shall 
always  feel  the  need  of  a  certain  degree  of  stability .^^ 

§  259.  The  Principle  of  Indemnification.  A  third 
way  of  reconciling  opposing  legal  aspirations  is  indemni- 
fication. The  actual  owner  of  a  right  is  expropriated, 
but  he  is  paid  an  indemnity.  He  will,  perhaps,  sufi"er 
inconvenience  ;  he  will  get  a  sum  of  money  in  place  of  the 
exact  advantage  he  sought.^^  But  apart  from  the  annoy- 
ance resulting  from  a  forced  exchange,  froin  difficulty  in 
fixing  the  value  of  rights,  the  system  is  admissible. 

One  may  invade  the  right  of  another,  but  on  condition 
of  paying  an  indemnity.  This  principle  is  acceptable 
in  a  great  many  hypotheses,  affecting  all  manner  of 
juridical  actS' — statutes,  administrative  acts,  private 
juridical  acts.  In  fact,  if  a  right  has  been  injured  and 
an  indemnity  paid,  he  who  did  the  injury  has  no  doubt 
secured  an  advantage  he  would  otherwise  not  have  had. 
When  a  Government  officer  condemns  property,  when 
a  proprietor  cancels  of  his  own  accord  a  sale  to  a  con- 
tractor,^* when  an  employer  discharges  a  workman,  paying 
him  an  indemnity,  he  generally  does   it  because  it  is 

•I  Maxime  Leroy,  "La  Loi,"  pp.  228ff. 
'2  Compare  £oMgié,  "Solidarisme,"  p.  83. 

3»  [This  book  has  a  later  chapter  on  "Execution  in  nature  and  by  equi- 
valent," not  here  translated. — Ed.] 
»<  French  Civil  Code,  art.  1794. 


§259]  EVOLUTION  AND  SECURITY  467 

to  his  advantage,  or  because  of  a  social  benefit  to  be 
accomplished  through  the  condemnation.  Such  a  proce- 
dure conforms  to  the  general  interest  sometimes  to  a  con- 
siderable degree.  We  must  not,  however,  be  led  astray; 
that  this  principle  be  applied,  another  object  is  necessary 
than  that  the  damaging  party  shall  seek  to  secure  some- 
thing in  place  of  the  money  which  he  has  to  pay.  This 
is  why  reëmptions  [retraits]  —  expropriations  of  private 
utility  they  have  sometimes  been  called  ■ —  are  useful 
only  when  they  permit  an  objective  advantage,  like 
the  suppression  of  a  lawsuit  or  of  a  joint-tenancy,  and 
not  when  they  are  exercised  solely  for  the  good  pleasure 
of  the  person  entitled  to  purchase. 

There  is  here  a  limit,  but  a  very  hard  one  to  establish, 
to  the  principle  that  a  person  can  be  obliged  to  suffer 
injury  if  an  indemnity  be  paid.  For  to  what  extent  can 
I  reasonably  operate  a  factory  which  injures  my  neighbor, 
under  the  sole  condition  to  pay  him  his  damages  after 
taking  the  precautions  recommended  by  experts?  Can 
he  force  me  to  pull  down  the  factory,  or  can  I  go  ahead 
on  paying  him  a  sum  of  money?  The  question  appears 
to  have  been  hardly  conceived. 

The  second  limitation  to  the  principle  is  that  there  are 
certain  rights  which  the  general  interest  would  seem  to 
demand  should  be  preserved  inviolate  in  the  hands  of 
their  owners.  The  rights  to  life  and  liberty  are  striking 
examples. ^^  But  there  are  many  others,  as  the  right  to 
choose  one's  work,  and  so  on,  and  we  shall  refer  to  them 
later  under  their  respective  headings. 

Finally,  we  must  not  forget  that  such  a  system  can 
only  operate  if   there  be  provided   serious  guaranties 

S6  This,  let  us  note  in  passing,  is  the  origin  of  passionate  disputes  over 
the  death  penalty  and  war.  If  society  grants  security  to  its  members 
only  with  the  declaration  that  they  may  eventually  find  death  in  war  or 
on  the  scaffold,  security  is  given  and  taken  away  at  the  same  time. 
To  give  it,  its  object  is  itself  sacrificed. 


468  RENÉ   DEMOGUE  [Ch.XIV 

for  the  fair  calculation  and  certain  payment  of  an  indem- 
nity. The  injured  party  must  have  that  "fair  and  pre- 
paid indemnity"  spoken  of  in  article  17  of  the  Declara- 
tion of  the  Rights  of  Man,  or  any  other  equivalent 
measure. 

Although,  however,  the  right  to  an  indemnity  is  readily 
recognized  where  private  individuals  are  concerned,  a 
considerable  effort  in  the  case  law  of  the  Council  of 
State  has  been  necessary  to  admit  it  when  the  injury 
comes  from  certain  administrative  acts;  and  when  it 
comes  from  legislative  acts,  this  right  is  still  contested, 
even  by  theoretical  writers.'" 

§  260.  Other  Remedies  for  the  Conflict  Between  Se- 
curity and  Change.  We  call  attention  finally,  as  an 
example  of  accessory  modes  of  compromise,  to  the 
system  of  suppressing  certain  Government  offices  only 
on  the  disappearance  of  their  holders.  This  system  is 
rather  administrative  than  judiciary,  and  has  been 
adopted  only  in  certain  statutes. 

It  is  possible,  further,  at  least  in  statutes,  to  reconcile 
security  and  change  by  defining  a  certain  period  during 
which  the  old  state  of  affairs  shall  continue,  but  after 
which  the  new  law  shall  apply.  As  static  and  dynamic 
security  usually  refer  only  to  a  certain  length  of  time, 
and  as  the  human  intelligence  is  limited  in  its  outlook, 
this  rough  method  brings  fairly  good  results.  It  has 
been  applied  in  several  recent  laws,  such  as  that  of 
July  29,  1909,  on  the  use  of  white  lead. 

This  leads  us  to  a  consideration  of  still  another  system 
of  reconciliation,  which  consists  in  the  application  of 
a  new  law  by  successive  stages,  like  the  Law  of  March 
30,   1900,  on  hours  of  labor,  which  is  applied  in  three 

«»  See  Duguit,  "Le  Droit  Individuel,"  pp.  93ff.  See,  however,  for 
an  example  of  indemnification,  French  Law  of  Aug.  2,  1872,  on  the 
match  monopoly,  art.  3. 


§260]  EVOLUTION  AND  SECURITY  469 

stages  at  two-year  intervals.  In  this  instance,  however, 
there  is  no  longer  any  principle  at  stake,  even  partially. 
The  method  is  to  limit  each  claim,  as  a  judge  reduces  too 
high  a  bill  by  fixing  a  sum  between  the  extremes  claimed 
by  each  side.  The  compromises  possible  in  this  way  are 
infinite. 

§  261.  The  Eguilihrium  of  Seairity  and  Change;  the 
Sacrifice  of  One  to  the  Other  Must  not  Overleap  Certain 
Bounds.  The  different  methods  which  we  have  indicated 
may  seem  insufiicient  to  those  who,  impatient  of  the 
yoke  of  the  past,  are  in  a  hurry  for  innovations  which 
will  establish  the  order  of  things  in  which  they  believe. 
Are  they  wrong?  It  will  all  depend  on  the  sentiment  for 
security  which  will  continue  in  the  face  of  their  inno- 
vations. It  all  depends,  furthermore,  on  the  value 
of  that  sentiment.  If  its  object  is  only  to  allow  a  pre- 
tended aristocracy  to  enjoy  existence  at  its  ease  without 
any  advantage  to  the  community,  it  is  in  opposition  to 
what  I  have  already  termed  our  western  conception  of 
life.  Consequently  if  the  innovation  does  not  proceed 
too  fast  it  is  not  to  be  regretted. 

On  the  other  hand,  the  legislator  ought  not  to  forget, 
any  more  than  any  one  else,  that  in  every  people  at  every 
epoch  there  is  a  sort  of  saturation  with  the  desire  for 
change,  the  limit  of  which  is  passed  when  transformations 
come  too  fast  and  cover  too  many  points.  The  statute 
which  undertakes  to  satisfy  at  once  the  instincts  of 
public  opinion  runs  the  risk  of  being  enforced  only  to  a 
limited  extent,  if  at  all." 

Finally,  as  Montesquieu  very  clearly  saw,^^  there  is  in 
every  society  a  limit  to  the  possible  sacrifice  of  security 
to   progress.     Hence    the   necessity   of   the   institution 

"  Such  was  the  state  of  public  opinion  in  France  towards  the  period 
of  the  Directory.  See  the  brilhant  pages  of  the  De  Goncourts,  "La  Société 
Française  sous  le  Directoire,"  conclusion. 

»*  "Esprit  des  Lois,"  Book  vi,  ch.  iii. 


470  RENÉ   DEMOGUE  [Ch.XIV 

whose  value  is  so  well  shown  by  Hauriou.  A  society, 
as  the  latter  author  remarks  very  justly,  endures  very 
well  an  internal  struggle  for  existence,  but  on  condition 
that  beside  the  regions  at  strife  there  are  others  at  peace. 
If  part  of  its  machinery  is  bad  and  compromised,  there 
must  be  other  parts  which  are  solid  and  approved  .^^ 

Moreover,  as  Courcelles-Seneuil  says,  nothing  is  more 
contrary  to  respect  for,  and  to  the  very  idea  of  law,  than 
instability  of  law  and  legislation.  Law  is  the  solid 
frame  of  human  society;  it  should  be  changed  only  in 
good  earnest,  after  careful  study  and  deep  reflection.'*" 
But  as  Spencer  remarks,  it  must  not  be  forgotten  that 
one  of  the  radical  conditions  of  largeness  of  thought  is 
to  avoid  extremes,  and  that  means  a  careful  estimate  of 
opinions  if  we  are  to  be  safe.'*^ 

"  "Science  Sociale  Traditionnelle,"  p.  193. 

*"  "It  is  the  sentiment  of  this  necessity,"  he  adds,  "which  renders 
true  lawyers  prudent  and  almost  cowardly,  which  inspires  them  with 
a  respect  for  form,  and  which  makes  them  hesitate  before  every  project 
of  change;  they  know  the  power  of  habit,  and  that  popular  respect 
for  a  right  increases  with  its  duration."  In  spite  of  that,  law  cannot 
remain  unchanging,  and  the  permanence  of  parliaments  is  the  form  into 
which  is  translated  this  continual  need  for  change. 

"  "First  Principles,"  6th  éd.,  p.  4. 


§262]    ECONOMY  OF  TIME  AND  EFFORT      471 


CHAPTER  XV 
ECONOMY  OF  TIME  AND  ACTIVITY 

THE  BIRTH  OF  A  NEW  FORMALISM  —  TYPES  OF  THE 
ARTIFICIAL  SIMPLIFICATION  OF  COMPLEX  SITUATIONS— 
THE  INCONVENIENCES  AND  HARDSHIPS  OF  OVER-SIM- 
PLIFICATION—MEANS OF  RECONCILIATION  BETWEEN 
THE  CLASHING  INTERESTS  OF  SPEED  AND  SECURITY  — 
HARMONIZING  RIVAL  INTERESTS  BY  RECIPROCAL  CON- 
CESSIONS. 

§  262.  The  Birth  of  a  New  Formalism.  The  legal 
systems  of  the  western  world,  inspired  largely  by  the 
wish  to  encourage  business  and  the  active  life,  have 
sought  so  to  arrange  the  performance  of  juridical  acts, 
and  legal  life  in  general,  as  to  economize  time  to  the 
utmost,  thus  making  it  easier  for  individuals  to  act  and 
thereby  to  create  wealth.^  This  is  an  application  of  the 
law  of  the  least  effort,^  which  is  especially  an  economic 
matter.  We  therefore  go  no  further  than  to  state  the 
existence  of  this  means  of  reconciling  the  wide  extent 
of  our  desires  and  of  our  needs,  with  the  forced  limitation 
of  our  activity  contained  in  the  very  nature  of  man. 

This  very  simple  idea,  that  a  man  should  not  waste 
his  efforts,  has  led  to  very  different,  sometimes  opposite, 

1  See  a  direct  application  of  this  economic  idea  to  the  law  in  the  book 
of  Mataja,  "Das  Recht  des  Schadenersatz  nach  dem  Standpunkt  der 
Nationalokonomie,"  especially  p.  19. 

2  See,  on  the  subject  of  effort  in  morals,  W.  S.  Jevons,  "Theory  of 
Political  Economy,"  p.  49  (1871).  As  to  the  law  of  the  least  effort, 
Winiarski,  "La  Principle  du  Moindre  Effort  comme  Base  de  la  Science 
Sociale,"  in  RP  1903,  p.  288;  Palante,  "La  Téléologie  Sociale  et  son 
Mécanisme,"  RP  1902,  pp.  149ff.,  with  the  authors  there  cited. 


472  RENÉ   DEMOGUE  [Ch.XV 

conclusions.  It  from  the  first  gave  a  death  blow  to 
formalism.  To  surround  an  act  with  complicated  for- 
malities —  the  intervention  of  the  parties  themselves, 
witnesses,  reduction  to  writing,  the  presence  of  certain 
third  parties — is  to  establish  so  many  complications  which 
make  it  harder  to  accomplish  the  act.  At  the  same  time, 
curiously,  it  caused  a  rebirth  of  formalism,  which, 
though  an  embarrassment  when  it  is  merely  a  pompous 
show,  becomes  a  means  of  making  transactions  rapid 
and  sure  when  it  only  embodies  the  essentials.  The 
affairs  of  the  Stock  Exchange,. of  companies,  of  nego- 
tiable instruments,  are  in  consequence  surrounded  with 
simple  formalities  which  indicate  the  meaning  of  the 
contract  which  is  involved,  such  as  option  market 
[marché  à  prime],  instrument  in  the  name  of  a  person 
[titre  nominatif],  endorsement,  and  so  on.  The  for- 
malism of  words  used  becomes  thus  an  economy  of  time, 
as  a  telephone  number  fixes  identity.  Each  term  is  a 
flag  which  covers  well-known  merchandise.  This  pro- 
cedure is  peculiarly  well  adapted  to  a  world  of  the  ini- 
tiated, such  as  stockbrokers,  merchants,  or  investors. 

This  neo-formalism  may  also  show  itself  in  special 
forms:  notably  in  the  contract  of  adhesion,^  where  the 
agreement  is  found  to  be  settled  once  for  all,  and  is 
formed  frequently  by  a  mere  acceptance,  without  a 
special  offer.  The  contract  may  make  its  appearance 
not  only  where  the  terms  used  are  almost  ritual  in 
character,  but  also  in  the  case  of  particular  documents 
which  are  greatly  simplified,  and  often  not  signed, 
such  as  railway  or  lottery  tickets,  money  certificates, 
and  the  like. 

3  [I.e.,  contracts  which  depend  for  their  effectiveness  upon  the  acquies- 
cence of  persons  who  have  not  had  a  hand  in  settling  their  form,  either 
directly  or  through  a  representative.  The  term  used  by  the  author 
seems  more  descriptive  than  any  English  one  in  common  use. — Ed.] 


§262]    ECONOMY  OF  TIME  AND  EFFORT      473 

The  rapidity  of  transactions  makes  for  clearness,  for 
the  simplification  of  statutes,  for  precision  in  the  drafting 
of  contracts,  and  for  the  simplicity  of  their  wording  with 
reference  to  known  rules,  such  as  those,  for  example,  of 
York  and  Antwerp  on  general  average. 

§  263.  Types  of  the  A  rtificial  Simplification  of  Complex 
Situations.  The  same  reason,  economy  of  time  and 
trouble,  leads  to  two  great  categories  of  unification,  that 
of  things  and  that  of  interests.  Unification  of  things 
consists  in  considering  one  thing  as  principal  and  the 
others  as  accessories  —  such  as  accessories  to  land  which 
become  real  estate,  accessory  guaranties,  a  pecuniary 
claim  accessory  to  a  right  in  real  estate  —  and  in  seeing 
that  the  act  which  affects  the  principal  will  affect  also 
the  accessory.  Unification  of  interests  consists,  when 
it  comes  about  that  certain  interests  are  identical  or  of 
the  same  sort,  in  considering  them  with  reference  to  their 
common  characteristics  and  in  treating  them  as  single. 
This  is  the  origin  of  the  theories  of  juristic  [moral]  per- 
sons, of  trusts  of  property  held  in  community,  and  of 
group  contracts  with  workmen. 

The  rapidity  of  transactions  produces  consequences 
in  another  domain.  It  attacks  all  uncertain  and  in- 
alienable titles.  An  estate  whose  owner  is  uncertain, 
because  its  existence  depends,  for  example,  on  a  condition, 
a  possible  nullity,  or  a  revocation,  is  to  that  extent  an 
impediment  to  business.  An  estate  which  is  inalienable 
or  whose  alienation  is  diflîîcult,  like  the  dot  of  a  married 
woman  or  the  estate  of  a  minor,  is  another  impediment. 

Rapidity  of  transactions  requires  doing  away  with  the 
whole  scale  of  the  different  degrees  of  impediment  to 
alienation,  from  simple  difficulty  to  utter  impossibility. 
These  complicated  situations  ought  not  alone  to  be  made 
public,  as  a  red  light  gives  warning  of  an  excavation  in 
a  city  street,  but  they  should  also  be  made  to  disappear 


474  RENÉ   DEMOGUE  [Ch.XV 

entirely  as  soon  as  possible.  It  is  not  enough  to  notify 
the  public  of  the  danger.  It  should  not  be  allowed  to 
continue. 

Here  we  have  the  strongest  argument,  together  with 
that  of  security,  for  the  unification  of  the  law  of  all 
countries.  If  all  civilized  States  would  adopt  a  common 
body  of  law,  if  there  existed  a  common  law  for  Europe 
or  for  the  world,  there  would  be  an  end  to  much  study 
and  to  the  perplexing  conflicts  arising  in  private  inter- 
national law. 

This  idea  of  the  economy  of  forces  may  lead  to  measur- 
ing responsibility  by  the  degree  of  fault,  the  interest  of 
society  being  to  suppress  the  most  serious  faults.  In 
any  case  it  will  induce  rejection  of  the  idea  of  damages 
greater  than  the  loss,  which  seems  to  be  involved  in 
certain  combinations.'* 

At  the  same  time  this  interest  of  economy  of  activity, 
of  rapidity  in  affairs,  requires  a  prompt  settlement  of 
all  difficulties.  This  entails  a  speedy  procedure,  short 
periods  in  which  to  take  legal  action,  courts  convenient 
to  suitors,  friendly  settlements  of  disputes  as  far  as  pos- 
sible by  compromise,  and  arbitrations;  it  entails  ex- 
tinction of  obligations  by  a  system  of  throwing  out  suits 
[fins  de  non-reçevoir]  which  works  quickly,  by  actual 
offers  of  fair  treatment,  by  compensation,  by  conditions 
that  may  render  a  claim  void  by  operation  of  law,  by 
rapid  methods  of  getting  execution,  and  by  energetic 
means  of  pressure.  These  things  are  the  object  logically 
sought  by  this  interest. 

The  same  idea  will  encourage  the  admission  of  all 
legal  measures  apt  to  discourage  fault  or  to  graduate 
responsibility  according  to  fault,  so  that  serious  fault 
will  always  be  sufficiently  punished,  especially  in  pro- 
portion to  damage,  and  thus  the  most  harmful  acts  be 

«  For  an  example  see  RDC  1908,  p.  689. 


§263]    ECONOMY  OF  TIME  AND  EFFORT       475 

discouraged.  It  will  also  lead  to  the  presumption  of 
compensation  in  case  of  fault,  and  accordingly  to  the 
admission  of  a  right  in  the  insurer  or  the  insured  to  a 
claim  against  the  person  whose  fault  caused  the  injury.^ 
It  will  likewise  prevent  accumulation  of  damages  to  an 
amount  greater  than  the  loss,  which  would  make  the 
accident  profitable  to  the  sufferer.^ 

§  264.  The  Inconveniences  and  Hardships  of  Over- 
Simplification.  We  must  not,  however,  ignore  the  fact 
that  this  procedure  may  conflict  with  other  interests, 
or  the  intensity  of  the  struggle  between  this  whirlwind 
sort  of  law  and  the  other  interests  which  the  law  holds 
worthy  of  protection.  The  conflict  is  the  more  acute 
because  the  rule  of  economy  works  by  piecemeal  without 
a  broad  outlook,  thus  causing  the  neglect  of  many  things  J 

Rapidity  of  operations  is  little  favorable  to  security, 
in  the  sense  that  it  is  easy  to  be  in  error  as  to  certain 
consequences  of  the  act  performed.  And  the  very 
play  of  the  system  renders  it  impossible  to  take  into 
consideration  individual  ignorance.  Is  it  possible  to 
make  allowances  for  a  business  man's  not  knowing  the 
rules  of  the  Stock  Exchange  or  the  law  of  exchange,  or 
for  a  traveler's  not  understanding  his  obligations  and 
his  rights  under  his  round -trip  ticket?  The  system 
eliminates,  in  operation,  the  individual  factor.  This 
factor  is  also  excluded  in  the  case  of  the  individual 
member  of  a  powerful  organism,  such  as  a  juristic  person, 
or  estate  in  the  hands  of  an  agent.  The  individual  then 
loses  relatively  his  autonomy  of  will,  he  has  imposed  on 
him  the  will  of  one  or  several  others.     "Whoever  has 

6  See  Capitant,  RDC  1906,  p.  37. 

6  Tribunal  de  la  Seine,  May  16,  1908,  RDC  1908,  689;  Court  of  Cass- 
ation, July  21,  1904,  RDC  1906.  p.  167;  Court  of  Paris,  March  28, 
1901,  RDC  914;  Cassation,  Oct.  31,  1906.  Sirey  1907.1.345,  with  note 
by  Wahl,  RDC  1907.  p.  813. 

'  See  on  the  character  of  the  principle  of  least  effort,  Ferrero,  cited 
by  Palante,  op.  cit. 


476  RENÉ   DEMOGUE  [Ch.XV 

an  associate  has  a  master,"  Loisel  has  said.  One  risks, 
at  times,  giving  up  too  much  of  a  precious  Hberty. 

The  psychological  factor,  the  consideration  of  good  and 
bad  faith,  is  almost  necessarily  omitted  in  this  extreme 
simplification,  and  in  consequence  the  place  which  justice 
might  have  had  in  the  law  is  restricted,  to  the  great 
detriment  of  public  morals. 

Commercial  law,  which  has  been  full  of  solicitude  for 
rapidity  of  transactions,  has  also,  from  this  very  fact, 
been  full  of  the  terrible  consequences  rapid  transactions 
produce,  and  of  attempts  to  rectify  them.^  The  estab- 
lishment of  short  periods  of  limitation  for  the  enforce- 
ment of  claims  may  affect  the  security  of  anybody. 
I  was  not  able  to  verify  within  three  days  the  packages 
delivered  by  a  railway,'  I  neglected  to  notify  the  in- 
surance company  within  the  period  fixed  in  the  policy 
of  an  accident  which  I  did  not  consider  serious,  I  did  not 
protest  a  note  the  day  after  it  fell  due  —  in  all  these  cases 
the  knife  of  the  fixed  period  cuts  me  off  automatically. 

§  265.  Means  of  Recondliation  Between  the  Clashing 
Interests  of  Speed  and  Security.  \Miat  I  would  term 
Americanism  in  matters  of  business  is  a  formidable 
machine  of  war  of  a  nature  to  destroy  security  and 
to  threaten  justice.  The  interest  of  speed  does  not 
appear  to  be  entirely  irreconcilable  with  other  interests, 
but  reconciliation  is  usually  the  result  of  sharp  strife, 
whether  it  be  the  strife  of  legislation,  of  strikes,  by  leagues 
of  consumers,  purchasers,  manufacturers;  it  is  rarely 
reached  by  friendly  cooperation.  Let  us  study  these 
reconciliations. 

Note  at  first  that  the  rapidity  of  transactions  leads 
to  the  use  of  uniform  methods  for  their  accomplishment. 

8  See  especially  the  short-time  limitations  established  by  commercial 
law,  with  regard  to  the  barring  of  actions  in  matters  of  transportation. 
»  French  Commercial  Code,  art.  105. 


§265]    ECONOMY  OF  TIME  AND  EFFORT       477 

The  tendency  to  repetition,  so  well  explained  by  Tarde,  is 
thus  accentuated,  this  being  a  factor  in  security.  Con- 
sequently the  spirit  of  invention  is  weakened,  a  spirit 
which  might  have  brought  about  a  happy  adaptation 
of  old  rules  to  new  situations.  So  in  business  there  are 
archaic  survivals  in  the  rnidst  of  very  modern  formulas. 
Hence  a  flexible  body  of  rules  is  called  for,  to  assure 
rapidity  of  transactions  and  at  the  same  time  to  allow 
needed  innovations.  Such  a  system  is  better  obtained 
by  forms  of  occupational  self -management,  such  as 
decisions  of  trade-union  councils,  than  by  statutory 
regulation,  which  is  always  a  bit  clumsy  and  ill  adapted 
to  temporary  or  local  needs.  Here  is  a  way  of  fre- 
quently avoiding  too  great  an  opposition  between  the 
desire  for  security  and  the  requirements  of  evolution. 

There  are  other  ways  of  weakening  the  conflict  between 
the  set  of  rules  by  which  contracts  are  to  be  governed 
and  the  requirements  of  interested  persons  who  may  find 
themselves  bound  by  clauses  of  which  they  knew  nothing. 
It  may  be  made  the  duty  of  each  contracting  party  fully 
to  inform  the  other  of  the  meaning  of  the  contract, 
either  by  giving  him  a  list  of  such  clauses,  or  by  having, 
in  the  companies  which  propose  contracts  of  adhesion, 
agents  whose  interpretation  of  such  contracts,  made 
to  the  public,  binds  the  heads  of  the  company.  Still 
another  method  would  be  to  limit  the  operation  of  rules 
adopted  to  facilitate  operations,  to  the  occupational 
groups  affected.  Thus  interpretations  of  contracts 
valid  between  manufacturers,  or  between  them  and 
wholesale  houses,  might  not  apply  to  the  same  provisions 
where  the  persons  interested  were  an  ordinary  purchaser 
and  a  retail  merchant.  These  last  two  procedures  are 
of  limited  application  in  modern  law. 

Another  way  of  reconciling  security  and  the  rapidity 
of  transactions  is  to  take  as  a  basis  not  a  simple  contract 


478  RENÉ   DEMOGUE  tCn.XV 

of  adhesion  imposed  by  one  party  on  the  other,  but  an 
agreement  estabhshed  by  collective  bargaining  between 
producers  and  consumers,  employers  and  workmen, 
insurers  and  insured,  manufacturers  and  their  clientèle. 

§  266.  Harmonizing  Rival  Interests  by  Reciprocal 
Concessions.  Methods  which,  without  adopting  any 
particular  point  of  view,  take  at  the  same  time  something 
from  each  of  the  contesting  interests,  may  be  counted 
as  among  those  which  make  it  possible  to  come  near 
to  satisfying  both.  Thus  the  law  may  limit  the  possi- 
bility of  leaving  situations  uncertain,  as  it  has  limited 
the  period  of  redemption,'"  and  the  period  for  annulment 
suits^^  or  for  actions  for  revocation, ^^  or  the  duration  of 
entails,'*  or  it  may  limit  the  scope  of  conditional  rights  — 
all  of  which  would  increase  security  and  yet  expedite  the 
performance  of  juridical  acts. 

In  the  same  spirit,  instead  of  admitting,  in  a  given  case, 
conclusive  presumptions  which  settle  immediately  the 
point  at  issue  and  thus  avoid  all  loss  of  time  from  dis- 
cussion, it  is  possible  to  admit  rebuttable,  "juris  tantum" 
presumptions,  more  or  less  easily  dispro\'ed.  This 
would  be  of  importance  proportional  to  the  need  of  proof 
of  a  matter  of  good  or  bad  faith.  To  eliminate  such 
proof  is  directly  contrary  to  dynamic  security,  and  it  may 
be  necessary  to  consider  this  point  in  order  to  insure 
rapid  transaction  of  business,  without  both  discouraging 
honesty  and  encouraging  dishonesty. 

Furthermore,  conditions  containing  certain  guaranties 
may  be  required  :  for  example,  clauses  excluding  appeal 
to  the  courts  for  the  enforcement  of  a  certain  convention 
may  be  forbidden;  or  only  reasonable  clauses  providing 

10  Civil  Code,  art.  1660. 
"  Civil  Code,  art.  1304. 
"  Civil  Code,  art.  959. 
«s  Civil  Code,  art.  1048. 


§266]    ECONOMY  OF  TIME  AND  EFFORT      479 

for  the  loss  of  a  right  may  be  tolerated;  or  it  may  be 
admitted  that  certain  acts  shall  be  under  the  control  of 
the  courts. 

These  expedients  are  clearly  not  perfect,  because,  to 
a  certain  extent,  they  act  as  a  drag  on  all  operations 
which  have  juridical  consequences,  but  they  may  never- 
theless be  acceptable  if  the  drag  is  not  too  evident. 


480  RENÉ   DEMOGUE  [Ch.XVI 


CHAPTER  XVI 
JUSTICE 

JUSTICE  AS  EQUALITY  OR  PROPORTIONALITY;  TANON 
SHOWS  THE  VARIABILITY  OF  THE  CONCEPT  —  THE  CON- 
CEPTION OF  JUSTICE  AS  A  PROPORTION  BETWEEN 
MATERIAL  ELEMENTS  — A  VARIATION  OF  THE  FORE- 
GOING PRINCIPLE,  PAYING  MORE  ATTENTION  TO 
CAUSALITY  — ANOTHER  CONCEPTION  RECOGNIZES  THE 
ELEMENT  OF  WILL:  RESPONSIBILITY-JUSTICE —  JUSTICE 
AS  TAKING  ACCOUNT  OF  ORDINARY  NEEDS  OF  INDIVI- 
DUALS—JUSTICE AS  THE  SATISFACTION  OF  PRIMARY 
HUMAN  NEEDS  — NONE  OF  THE  FOREGOING  CONCEP- 
TIONS CAN  BE  COMPLETE,  JUSTICE  BEING  A  FORMAL 
IDEA  — THE  VALUE  OF   JUSTICE  EVEN  SO   UNDERSTOOD. 

§  267.  Justice  as  Eqjiality  or  Proportionality  ;  Tanon 
Shows  the  Variability  of  the  Cojicept.  The  expression 
justice,  so  widely  used,  so  freely  invoked  in  regard  to 
legal  decisions  and  in  support  of  general  principles  or 
special  cases,  is  nevertheless  not  an  elementary  term, 
like  time  and  space,  beyond  which  there  is  nothing  more 
to  be  expressed.  It  is  at  bottom  one  of  those  indefinite 
expressions  which  are  so  easy  to  abuse  because  they 
may  be  understood  in  so  many  different  ways.  It  is  easy 
to  see  how  it  could  have  been  often  an  instrument  of 
tyranny  over  the  weak,  and  how  the  Romans  could  have 
boasted  that  they  always  began  and  ended  their  wars 
with  justice.* 

I  See  De  Tourtoulon,  op.  cit.  p.  150. 


§267]  JUSTICE  481 

The  term  certainly  covers  an  idea  of  equality  ^  between 
those  who  are  in  an  identical  situation,  or  an  idea  of 
proportion,  which  is  really  reducible  to  equality  between 
the  simple  elements  of  which  two  quantities  are  com- 
posed^";  and  it  may  be  said  that  justice  always  con- 
tains that  equality  which  the  traditional  scales  represent. 

It  contains  also  an  idea  of  generality,  what  Jhering 
calls  external  equality,  the  uniform  application  to  all 
cases  of  a  rule  once  established.^  Every  principle, 
furthermore,  tends  to  its  own  widest  application.  Justice 
is  a  proportion  which  naturally  aspires  to  be  applied  to 
every  case,  just  to  satisfy  more  completely  the  somewhat 
jealous  sentiment  which  is  at  its  base. 

Equality,  however,  is  nothing  but  a  relation.^  The 
objects  to  be  taken  as  equal  must  be  fixed  upon.  It  is, 
therefore,  not  astonishing  that  so  many  divergent  con- 
ceptions of  justice  are  to  be  met  with  among  both  philo- 
sophers and  lawyers.  There  may  well  be  a  general  agree- 
ment to  put  it  above  equity,  which  refers  to  the  solution 
worked  out  for  a  given  case,  while  justice  is  for  all  cases.^ 
But  what  then? 

For  a  long  time  precise  definitions  of  the  word  have 
been  attempted.  For  some  that  is  just  which  causes 
the  pleasure  resulting  to  him  who  does  the  act  in  question 
to  exceed  the  pain  it  will  give  to  others.^     For  others 

'  Hence  the  precision  which  Alill  sees  in  the  idea  of  Justice.  See 
"Utilitarianism"  (French  ed.  p.  96). 

2a  This  comes  near  being  the  idea  expressed  by  Riimelin  ("Ueber  die 
Idee  der  Gerechtigheit,"  p.  178)  and  Alessandro  Levi  ("La  Société  et 
l'Ordre  Juridique,"  p.  357)  when  they  say  that  in  all  the  concepts  of 
justice  there  is  an  element  of  retribution. 

3  "Law  as  a  Means  to  an  End,"  p.  275. 

*  See  on  this  relative  character  of  justice  Sully- Priidhomme,  RMM  1904, 
p.  165. 

6  If  not,  equity  is  a  very  vague  term.  See  Van  der  Eycken,  "Méthode 
Positive  d'Interprétation,"  pp.  335ff. ;  Bélime,  "Philosophie  du  Droit," 
vol.  i,  p.  502. 

«Bentham,  cited  by  Oudot,  "Essai  sur  la  Philosophie  du  Droit,"  p.  49. 


482  RENÉ   DEMOGUE  [Ch.XVI 

it  is  equity  and  charity.^  Yet  others  believe  that  it 
impHes  a  certain  value  given  to  man,  without  excluding 
certain  persons  from  securing  more.*  Another  view  is 
that  it  is  a  certain  equality  among  men  in  consequence 
of  which  every  adult  reaps  the  fruits  of  his  own  nature 
and  of  the  acts  which  are  its  consequence.^  Still  another 
is  that  it  is  a  form  of  liberty  implying  a  recognition  of 
the  right  of  every  man  to  freedom  to  act  without  hin- 
drance and  to  the  advantages  derived  from  his  action. 
It  implies  a  conscious  appreciation  of  the  limits  imposed 
by  the  presence  of  other  men  with  like  rights. i" 

Jhering  here,  as  elsewhere,  has  ways  of  looking  at 
things  which  are  both  precise  and  profound.  He  holds 
to  the  preceding  conceptions  in  giving  justice  a  unique 
content,  and  in  qualifying  justice  as  internal  equality, 
that  is,  as  the  fair  relation  between  merit  and  reward, 
between  punishment  and  fault^^;  but  he  develops 
another  quality  of  justice,  generality. ^^ 

Our  contemporaries,  however,  may  be  said  to  have 
shown  themselves  more  fully  aware  of  the  elements  of 

'  Oudot,  op.  cit.,  p.  67. 

8  Henry  Michel,  "L'Idée  de  l'État,"  pp.  640ff. 

•  Herbert  Spencer,  "Justice." 

1°  Ibid.,  passim.  See  an  analogous  idea  of  Kant,  "Metaphysik  der 
Sitten,"  cited  hy  Spencer,  ibid.  (p.  310  of  French  éd.).  Other  conceptions 
of  justice  may  here  be  cited.  Landry,  "L'Idée  de  Justice  Distributive," 
RMM  1901,  p.  730,  considers  that  justice  demands  that  everything  be 
ordered  in  relation  to  a  single  purpose,  in  fixing  which  only  stable  senti- 
ments should  be  considered.  This  purpose  should  be  economic.  D'Aguan- 
no,  Archivio  Giuridico,  1907,  vol.  ii,  p.  279,  also  sees  in  justice  an  idea  of 
equality,  but  one  which  implies  a  social  object.  Stammler,  "Die  Lehre 
von  dem  Richtigen  Rechte,"p.  198  [to  be  translated  in  this  Series],  declares 
the  content  of  a  rule  just  when  in  its  situation  it  answers  to  the  social 
ideal,  which  is  very  vague.  See  Jean  Neybonr,  Revue  Socialiste,  1909, 
vol.  ii,  p.  971,  who  understands  justice  as  complex,  being  at  once  dis- 
tributive and  commutative.  Compare  A .  Z.éz'/,  "La  Société  et  l'Ordre 
Juridique,"  pp.  372ff.,  and  Clovis  Belivagiia,  "Ideal  de  Justica"  (in 
"Litteratura  e  Diretto,"  Bahia  1907). 

"  "Law  as  a  Means  to  an  End,"  p.  275. 

12  In  another  passage  he  gives  another  idea  of  Justice;  it  "is  nothing 
else  than  that  which  suits  all,  where  all  can  subsist."  Ibid.  p.  101. 


§267]  JUSTICE  483 

complexity  and  variability  in  the  idea  of  justice.  Tanon, 
in  particular,  has  indicated  that  the  ideas  of  proportion- 
ality, and  others  of  the  same  sort,  are  not  the  whole  of 
its  rich  and  varied  content,  and  that  they  do  not  respond 
to  the  variety,  to  the  warmth,  or  to  the  power  of  the 
sentiments  aroused  by  its  evocation  in  the  minds  of 
men.^^  It  is  in  this  jurist  that  one  finds  the  completest 
expression  of  this  very  true  idea.  Other  writers  use 
expressions  indicating  summarily  the  variability  of 
justice  without  emphasizing  the  point. ^'* 

Before  proceeding  further  in  our  study  of  the  true 
meaning  of  the  idea  of  justice,  let  us  consider  the  practical 
application  of  its  principal  conceptions. 

§  268.  The  Conception  of  Justice  as  a  Proportio?i 
between  Material  Elements.  The  first  conception  of 
justice  is  that  of  equality  based  on  a  material  fact, 
fully  capable  of  appreciation  by  the  senses,  and  of 
measurement.  It  appears  in  the  law  in  the  ancient 
form  of  the  "lex  talionis."  It  occurs  in  modern  law  in 
the  equality  of  votes  in  elections;  in  the  equal  shares 
of  relatives  of  the  same  degree  in  successions;  in  the 
equal  division  among  creditors  of  article  2093  of  the 
Civil  Code;  in  the  division  of  gains  and  losses  between 
partners  in  proportion  to  their  shares;  in  the  division 
of  a  decedent's  estate  into  lots  for  the  heirs  of  the  same 
composition,  each  containing  so  much  real  estate,  so 
much  personality  and  credits;  in  the  distribution  of 
debts  in  proportion  to  assets. 

Even  this  conception  of  equality,  however,  as  the 
preceding  examples  show,  is  capable  of  differing  inter- 
pretations. Men  differ  and  so  do  things,  so  that  equality 
can  be  spoken  of  only  by  so  simplifying  every  creature 

1»  "L'Évolution  du  Droit,"  pp.  76ff. 

"  De  Tourtoulon,  "Principes  Philosophiques  de  l'Histoire  du  Droit," 
p.  302;  Lévy-Ullmann.  RDC  1903,  p.  845;  Colins,  "La  Justice  dans  la 
Science,"  vol.  ii,  p.  359. 


484  RENÉ  DEMOGUE  [Ch.XVI 

and  every  material  fact  that  only  one  aspect  appears 
in  each.  Every  human  being  may  be  considered  solely 
as  human,  resulting  in  an  equality  so  profound  that  it 
leads  straight  to  an  unrealizable  socialism,  or  to  the 
most  radical  feminism  with  its  postulate  of  the  absolute 
legal  equality  of  man  and  woman.  It  may  be  felt, 
on  the  other  hand,  that  in  every  instance  a  certain 
special  aspect  of  things  must  be  particularly  looked  for. 
The  simplest  is  evidently  that  of  material  value,  that 
means  by  which  things  can  be  exactly  counted,  weighed, 
or  measured:  one  share  of  capital  is  worth  another  of 
the  same  value,  one  creditor  is  in  the  same  position 
as  another  to  whom  the  debtor  owes  the  same  sum 
(this  is  the  principle  applied  in  the  proportional  divi- 
sion among  creditors  established  by  article  2093  of  the 
Civil  Code). 

The  first  conception,  that  all  men  are  equal,  although 
the  easiest  to  reach,  is  the  one  which  has  the  most  ob- 
scure foundation.  This  can  only  be  the  solution  of 
the  mysterious  and  disturbing  problem  of  the  object  of 
life,  an  object  which  should  be  the  same  for  all  and  equally 
within  the  reach  of  all;  or  it  is  a  simple  compromise 
betw^een  opposing  interests  which  has  a  good  chance 
of  success,  because,  under  its  sway,  every  one  who  has 
something  will  not  be  too  discontented,  especially  as  he 
reflects  that  his  neighbor  has  no  more.  This  idea  is  one 
of  compromise,  born  of  the  desire  for  social  peace  and 
of  sentiments  of  which  one  of  the  most  important  is 
jealousy. 

The  conception  of  justice  resting  on  an  equality  be- 
tween material  things  which  present  an  identical  char- 
acter and  in  principle  are  of  equal  value,  is,  on  the  whole, 
no  more  than  a  form  of  the  static  security  of  values, 
considered  not  singly  but  in  relation  one  to  another. 
Each  value  is  to  increase  or  diminish  in  the  same  pro- 


§268]  JUSTICE  485 

portion.  This  idea  has  been,  however,  little  followed 
in  existing  systems  of  law.  Where  losses  arise  from 
the  clash  of  two  activities,  as  in  case  of  accident  or  even 
in  the  non-execution  of  a  contract,  the  law  of  the  land 
(unlike  the  law  of  the  sea)  does  not  know  the  principle 
of  the  division  of  losses.  "Res  perit  domino"  is  the  idea 
here  still  prevailing  at  the  present  day.  This  form  of 
"every  one  for  himself"  is  nevertheless  a  narrow  con- 
ception of  security.  A  breach  has  been  made  in  this 
conception  indirectly  by  the  principle  of  occupational 
risk,  which  may  one  day  become  that  of  the  risk  of  activ- 
ity, in  virtue  of  which  a  person  must  always  answer  for 
injuries  resulting  from  his  activity  even  when  he  was 
not  at  fault.  Concurrently  with  the  tendencies  already 
referred  to,  another  has  manifested  itself  in  regard  to 
this  same  point  of  risk;  indeed,  in  practice,  it  is  readily 
admitted  as  a  basis  for  a  partial  responsibility  only. 
This  is  what  is  accomplished  by  the  Law  of  April  9,  1898, 
which  makes  the  employer  responsible  for  only  a  part 
of  the  loss  caused  his  employee  by  a  work-accident. 
The  narrow  theory  of  article  407  of  the  Commercial 
Code  is  of  like  nature.  That  article  provides  for  a 
division  of  liability  between  the  interested  parties  in 
case  of  a  marine  collision  where  the  fault  is  hard  to 
locate. 

This  form  of  justice  is  seductive.  It  takes  rights  on 
their  most  tangible  side,  that  of  value.  Besides,  justice 
thus  understood  is  not  in  itself  subject  to  criticism; 
it  is  but  the  corollary  of  a  fundamental  idea,  of  which 
alone  can  there  be  any  discussion.  That  idea  is  that  the 
interest  of  society  in  the  conservation  or  development  of 
economic  goods  is  proportional  to  their  value.  It  means 
essentially  preservation  of  acquired  situations,  and 
philosophically  is  part  of  the  great  principle  of  causality: 
The  cause  answers  for  its  effects  or  profits  by  them. 


486  RENÉ   DEMOGUE  [Ch.XVI 

The  question  which  frames  itself  is  then  the  following: 
Must  the  social  extension  of  this  principle  be  approved? 
This,  again,  is  one  of  those  questions  the  answer  to 
which  depends  quite  strictly  on  the  goal  assigned  to 
life,  which  consequently  connects  itself  very  closely 
with  an  idea  which  is  the  attitude  of  mind  of  many  men. 
In  a  more  general  way,  the  legal  solutions  that  we  term 
just  are  those  of  a  reflex  justice.  Without  wishing  to 
poach  on  others'  preserves,  I  would  remark  that  this  is 
true  of  most  moral  rules  which  are  moral  because  they 
are  good,  that  is,  useful.  They  are  just  because  they 
are  good.  If  it  is  just  that  a  man  be  bound  by  his  own 
will,  that  his  declaration  of  will  be  construed  in  con- 
formity with  his  real  intent  —  if  it  is  just  that  there  be 
a  certain  degree  of  equality  among  men,  the  reason  is 
that  this  is  useful,  as  corresponding  to  certain  ideal 
views  on  the  meaning  of  life. 

The  two  conceptions  of  justice  which  take  into  con- 
sideration either  human  unity  or  value  unity  have  the 
further  advantage  of  simplicity.  They  single  out  a 
material  aspect  easy  to  grasp  as  a  basis  of  legal  relations. 

At  the  same  time  these  principles  have  but  a  limited 
range,  for  they  can  only  settle  difficulties  in  which 
persons  or  rights  at  issue  may  be  considered  from  the 
same  angle. 

§  269.  A  Variation  of  the  Foregoing  Principle,  Paying 
More  Attention  to  Causality.  Another  conception  of 
justice  is  as  a  relation  of  equality  or  of  proportion  be- 
tween material  elements,  involving,  however,  a  more 
delicate  appraisal  than  in  the  cases  just  considered. 
This  idea  is  more  directly  subject  to  the  influence  of 
the  principle  of  causality.  It  may  be  thought  just,  for 
example,  to  repay  one  person  for  the  enrichment  which 
he  has  procured  for  another.  This  is  the  basis  of  the 
right  of  indemnity  for  expenses  borne  by  a  mandatary  or 


§269]  JUSTICE  487 

unauthorized  agent,  or  by  one  who  builds  on  another's 
land.  Inversely,  indemnity  for  injury  occasioned  to 
another  may  be  regarded  just. 

There  may  be,  however,  variations  on  this  general 
theme,  that  the  cause  is  answerable  for  the  effect.  Two 
different  rules  may  be  conceived.  He  who  has  caused 
by  his  action  enrichment  or  injury  may  be  allowed  to 
claim  the  actual  amount  of  the  increase  in  value  or  be 
obliged  to  pay  the  actual  damage  done.  That  is  to 
say,  his  right  or  obligation  may  equal  the  actual  change 
occasioned  in  another's  property.  This  is  the  current 
theory  applied  to  cases  of  actionable  fault  or  of  "in  rem 
versum,"  or  of  useful  expenditure  on  the  property  of 
another  by  a  possessor  or  proprietor. ^^ 

The  other  rule  would  compel  him  to  pay  over  the 
profit  or  would  entitle  him  to  be  recompensed  for  the 
loss  accruing  to  his  own  property  by  his  act;  that  is, 
the  right  or  obligation  would  equal  the  change  in  his 
own  property.  It  has  found  expression  in  article  1631, 
Civil  Code,  which,  in  case  of  total  eviction,  guarantees 
the  return  of  the  entire  purchase  price  by  the  vendor 
to  the  purchaser  regardless  of  the  actual  value.  It  is 
also  partly  involved  in  article  1184  of  the  Civil  Code. 

Which  of  these  two  conceptions  of  justice  is  the 
better  depends  on  the  general  position  which  the  legis- 
lator has  taken.  If  he  makes  the  extent  of  the  rights 
and  obligations  of  the  actor  depend  on  the  change 
which  has  been  wrought  in  another's  property,  it  is 
because  he  desires  to  strengthen  acquired  situations  by 
guaranteeing  them  against  injury,  and  by  granting 
indemnity  to  the  actor  only  where  there  has  been 
enrichment  as  a  result  of  his  action  and  to  the 
extent  of  such  enrichment.  This  is  static  security,  or 
at  least  a  static  right. 

16  Civil  Code,  arts.  861.  1437. 


488  RENÉ   DEMOGUE  [Ch.xVI 

If  the  juridical  situation  is  made  to  depend  on  the 
enrichment  or  on  the  impoverishment  of  the  actor, 
action  is  the  consideration  in  view.  The  object  is  to 
induce  action  for  the  enrichment  of  another,  and  also,  in 
another  aspect,  as  far  as  possible  to  discourage  action 
which  will  impoverish  another.  Such  a  regulation  of 
action  would  be  sufficient  except  for  the  imprudence  of 
men,  which  is  normally  to  be  expected,  when  it  is  not 
excessive. 

§  270.  Another  Conception  Recognizes  the  Element 
of  Will:  Responsibility- Justice.  This  manner  of  inter- 
preting justice  which  is  concerned  only  with  causality, 
and  which  is  therefore  wholly  objective,  serves  as  a 
natural  transition  to  conceptions  of  justice  founded  on 
an  intellectual  element. 

One  may  conceive  justice  as  establishing  an  equality 
between  the  intensity  of  the  will  of  a  person  and  the  good 
or  bad  legal  consequences  which  flow  from  it,  so  far  as 
he  is  affected  by  them.  According  to  this  conception 
good  will  is  recompensed:  the  manager  of  another's 
affairs  should  be  paid  or  at  least  indemnified  even  if  the 
enrichment  has  disappeared;  he  who  had  a  normal  will, 
and  believed  that  he  was  acting  within  his  rights,  should 
be  indulgently  treated  even  where  he  has  deceived 
himself. 

The  inverse  consequences  are,  however,  much  more 
important.  The  question  here  is  as  to  the  legal  results 
of  states  of  will  which  have  had  bad  consequences.  If 
the  individual  willed  the  act  which  resulted  in  damage, 
if  he  wanted  to  cause  the  injury,  he  will  be  fully  respon- 
sible; if  he  willed  the  harmful  act  without  foreseeing 
all  its  consequences,  he  will  be  less  so.  If  the  injurious 
act  was  not  directly  willed,  but  resulted  from  imprudence 
or  negligence,  the  responsibility  will  vary  with  the 
gravity  of  the  fault,  with  the  degree  to  which  the  actor 


§270]  JUSTICE  489 

has  deviated  from  what  he  should  have  done  or  not 
done.  Responsibility  ceases  to  exist  only  where  the 
injury  could  not  have  been  helped,  by  reason  of  some 
material  or  personal  necessity,  that  is,  in  the  case 
of  vis  major  or  insanity.  This  notion  of  justice  is 
embodied  only  very  roughly  in  the  Civil  Code.  It  is 
approximately  contained  in  such  dispositions  as  article 
1150,  according  to  which  an  individual  who  does  not 
carry  out  his  contract  is  differently  treated  with  respect 
to  his  good  or  bad  faith, ^^  or  in  the  classical  distinction 
between  grave  and  slight  fault  in  the  case  of  deposi- 
taries, agents,  or  others. 

More  exactly,  when  has  private  law  judged  it  expedient 
to  establish  this  concordance  between  a  certain  state  of 
mind  freely  willed  and  its  material  results?  Three 
principal  cases  may  be  distinguished:  a  good  intention, 
an  evil  intention  (or  at  least  fault),  and  "force  majeure." 

Where  the  intention  was  good  the  law  takes  it  into 
consideration  in  many  cases.  Where  the  intention  was 
to  render  a  service  to  another,  it  sets  up  an  implied 
agency.  Good  faith  is  taken  into  account  in  the  acqui- 
sition of  personalty,  article  2279,  Civil  Code;  in  that 
of  real  estate  by  prescription,  article  2265,  Civil  Code; 
in  the  acquisition  of  profits,  article  549,  Civil  Code; 
in  case  of  plantations  on  the  land  of  another,  article  555, 
Civil  Code;  of  the  non-execution  of  obligations,  article 
1150;  where  third  parties  ignorant  of  the  revocation 
of  the  agency  have  treated  with  an  agent,  article  2005, 
Civil  Code,  or  with  a  bankrupt  in  ignorance  of  his 
cessation  of  payments,  article  448,  Code  of  Commerce. 

All  these  dispositions,  however,  work  only  relative 
justice  ;  they  do  not  proportion  the  recognized  advantage 

»»  Hildenburg,  RC  1901,  p.  26,  has  a  different  theory,  applying 
better  the  idea  of  justice.  He  considers  solely  the  responsibility  of  the 
individual. 


490  RENÉ   DEMOGUE  [Ch.XVI 

to  indisputable  or  apparent  good  faith,  and  they  are 
far  from  giving  all  that  good  faith  would  require.  Good 
faith  alone  does  not  always  suffice  to  acquire  ownership 
in  property,  real  or  personal. 

From  another  point  of  view,  though  the  law  treats 
bad  faith  with  greater  severity  in  the  cases  cited,  though 
it  compels  the  person  at  fault  to  pay  damages,  sometimes 
even  punitive  damages,  these  are  but  the  rules  of  a 
relative  justice.  If  some  one  must  suffer  from  a  fault 
the  law  prefers  that  it  should  be  the  person  at  fault, 
but  the  injury  is  not  proportioned  to  the  fault.  Even 
punitive  damages,  though  in  proportion  to  the  fault, 
profit  a  person  who  ought  not  to  have  the  profit  they 
imply.  Going  further,  the  law  even  permits  the  stipu- 
lation in  contracts  of  liquidated  damages  differing  from 
the  actual  loss. 

The  law  truly  pronounces  justice  in  only  one  class  of 
cases:  where  vis  major  has  prevented  the  execution 
of  an  obligation  and  the  person  obligated  is  freed.  This 
rule,  however,  is  nowadays  limited  by  the  distinction 
which  there  is  a  tendency  to  draw  between  chance  and 
vis  major.^^ 

How  shall  we  explain  the  limited  application  of  this 
responsibility-justice,  which  has  the  advantage  of  favor- 
ing the  increase  of  social  wealth  and  of  serving  the 
interest  of  all  by  encouraging  men  to  help  their  neighbors 
and  by  discouraging  any  attempts  at  injury?  It  comes 
from  the  greater  consideration  which  the  legislator 
gives  to  other  elements,  and  from  the  fact  that  when  he 
appeals  to  this  kind  of  justice  he  amalgamates  with  it 
justice  measured  by  the  injury  done  another.  Finally,  in 
many  hypotheses,  like  those  based  on  the  advantage 
procured  for  another,  there  is  no  definite  system. 

1'  On  the  distinction  between  chance  and  vis  major,  see  Bourgoin, 
"Distinction  du  Cas  Fortuit,"  thesis,  Lyons  1902. 


§270]  JUSTICE  491 

Nevertheless  the  little  room  made  for  this  idea  is 
astonishing  in  view  of  the  fact  that  here  is  to  be  found 
a  sufficiently  simple  conception  of  justice,  agreeing  there- 
fore with  the  ideas  of  economy  of  means  and  security. 
Fault,  though  a  wholly  subjective  idea,  is  here  treated 
objectively.  All  men  are  looked  upon  as  equally  in- 
telligent, equally  able  to  understand  the  possible  material 
situations  which  will  result  from  their  inaction  or  im- 
prudence, and  equally  capable  of  effort  or  of  resistance 
to  evil  temptation.  Only  children  and  the  insane  are 
excepted. 

This  is  not,  however,  the  only  possible  conception  of 
justice  from  an  intellectual  point  of  view.  It  is  possible 
to  advance  to  that  background  of  individual  responsi- 
bility, not  altogether  forbidden  to  psychology,  which 
is  too  elusive  to  serve  as  a  basis  for  anything  but  for 
decisions  of  particular  cases,  or  for  a  special  class  of 
consequences  of  the  statute.  Examples  are  a  law  for 
workmen  different  from  that  for  employers,  a  criminal 
law  varying  the  punishment  with  the  rank  of  the  con- 
victed official. 

It  is  possible  to  imagine  rules  of  responsibility  different 
according  to  the  social  condition  of  individuals,  so  as 
to  approach  nearer  to  the  real  degree  of  development 
of  their  faculties.  Quite  possibly  industrial  and  social 
legislation  will  develop  along  this  line  in  the  future. 

§  271.  Justice  as  Taking  Account  of  Ordinary  Needs 
of  Individuals.  There  is  another  and  last  conception 
of  justice,  that  which  takes  into  consideration  the  needs 
of  the  individual. ^8  This  idea,  according  to  the  inter- 
pretation given  it,  may  vary  from  accentuated  subject- 
ivism to  very  pronounced  objectivism.  The  needs  of 
the  individual  may  be  simply  strong  national  or  social 
tastes,  innate  or  acquired,  or  on  the  contrary  they  may 

»»  Picard,  "Le  Droit  Pur,"  p.  406. 


492  RENÉ   DEMOGUE  [Ch.XVI 

vary  in  the  highest  degree  according  to  individual, 
environment,  or  the  age.  Justice  thus  conceived,  which 
seeks  to  procure  equal  satisfactions  for  all,  can  hardly 
influence  the  law  ;  it  has  too  uncertain  a  basis  to  be  the 
criterion  for  anything  but  very  special  dispositions.  To 
determine  it  is  then  the  judge's  business,  as  in  the  case 
of  alimentary  pensions  (art.  208,  Civil  Code). 

Instead  of  adopting  the  theory  in  full  it  is  possible  to 
adopt  a  mixed  system  and  to  decide  that  justice  requires 
special  rules  for  each  social  class,  in  view  of  the  ordinary 
needs  of  that  class.  This  rule  is  still  very  vague,  although 
it  has  been  applied  in  some  important  dispositions  of  the 
law  :  such  as  the  admission  of  any  sort  of  proof  in  com- 
mercial matters;  the  dispensation  with  certain  formali- 
ties in  regard  to  notes  of  hand  in  respect  to  certain 
persons  (art.  132,  Civil  Code);  the  priority  of  right 
of  workmen  for  their  wages,  of  employees  for  their 
salaries,  or  of  workmen  for  their  temporary  indemnity 
(art.  2101,  no.  6);  the  right  of  the  victims  of  a  work- 
accident  against  the  guaranty  fund  (Law  of  April  9,  1898, 
art.  24). 

§  272.  Justice  as  the  Satisfaction  of  Primary  Human 
Needs.  The  extreme  of  this  conception  of  justice  is 
the  idea  that  every  one  should  be  able  to  satisfy  his 
primary  needs.  Existence  should  be  guaranteed.  This 
idea  is  at  the  base  of  the  exemption  of  a  minimum  of 
existence  with  respect  to  taxes.  It  underlies  a  large 
part  of  the  law  applying  to  the  laboring  classes.  The 
workman  should  have  the  indispensable;  hence  he  is 
entitled  to  indemnity  in  case  of  a  work-accident,  to  a 
retirement  pension;  his  health  must  be  protected 
(Law  of  July  12,  1893);  he  must  not  be  overworked 
(Law  of  July  16,  1907  on  one  day's  rest  in  seven).  Fur- 
ther, every  one  should  be  able  to  get  credit  for  lodgment 
and  food,  so  a  special  right  is  granted  with  respect  to 


§272]  JUSTICE  493 

lessors  and  to  merchants  (arts.  2101,  no.  5,  and  2102, 
no.  1,  of  the  Civil  Code).  A  poor  person  should  be  in  a 
position  to  enforce  his  rights,  hence  legal  aid  for  the 
poor.  The  aged  worker  should  have  a  pension  (Law 
of  April  6,  1910),  and  so  should  all  old  people  and  in- 
valids. 

This  way  of  understanding  justice,  which  has  assumed 
so  much  importance  in  recent  laws,  is  a  theory  not 
unrelated  to  that  of  an  equality -justice  complete  for  all 
men.  Both  have  the  same  foundation — human  life  is 
respectable  in  itself,  it  should  always  be  respected. 
Justice  in  proportion  to  need,  however,  admits  an 
attenuation.  It  does  not  draw  the  inference  that  men 
are  equal,  but  that  they  should  all  have  enough  to  live 
on,  while  certain  among  them  may  have  special  ad- 
vantages. It  is,  then,  a  compromise  theory,  making 
only  a  limited  application  of  the  idea  of  justice,  and 
admitting,  alongside  it,  a  certain  application  of  the 
principle,  "to  every  one  according  to  his  works."^* 

§  273,  None  of  the  Foregoing  Conceptions  Can  be 
Complete,  Justice  being  a  Formal  Idea.  Looking  over 
this  group  of  conceptions,  we  see  that  on  the  whole  no 
one  of  them  can  be  exclusively  adopted.  Not  only 
would  certain  among  them  lead  to  inacceptable  con- 

1'  These  different  conceptions  of  justice  are  for  the  most  part  already 
indicated  by  Tarde,  "Opposition  Universelle,"  p.  413.  "Justice  in- 
cludes an  idea  of  equality  between  persons  in  an  identical  situation. 
But  while  it  contains  a  stable,  it  contains  also  a  variable  element.  What 
will  be  the  characteristic  of  that  identity  of  situation?  In  the  law  of 
talion,  it  is  the  material  fact  of  a  certain  wound  which  calls  for  an  equal 
wounding.  Some  call  it  the  aspiration  for  the  same  things:  equality 
among  consumers,  equality  among  those  who  need  the  same  things. 
Others  again  say  that  it  consists  in  the  fact  that  these  identical  needs 
are  felt  by  persons  who  have  the  needs  to  the  same  degree;  to  everyone 
according  to  his  needs.  For  others,  finally,  it  means  that  each  consumer 
has  work  of  equal  value;  to  everyone  according  to  his  works."  On 
these  manifold  conceptions  of  justice,  compare  John  Stuart  Mill,  "Utili- 
tarianism," who  is  far  less  precise. 


494  RENÉ   DEMOGUE  [Ch.XVI 

sequences,  like  complete  equality  among  men,  but  no 
one  may  be  applied  to  every  case.  This  is  natural 
enough.  Justice  consists  especially  in  extracting  from 
the  various  situations  which  present  themselves  a 
character  judged  fundamental,  and  in  determining  the 
solution  of  each  case  according  to  the  more  or  less  im- 
portant rôle  which  this  character  plays  therein.  This 
fundamental  character  is  not  necessarily  to  be  found  in 
every  hypothesis.  Every  conception  of  justice  then 
risks  being  narrow,  because  it  takes  up  only  one  aspect 
of  things  and  is  of  limited  range.  It  is  therefore  natural, 
even  necessary,  in  thinking  of  justice,  to  have  in  mind 
several  conceptions  at  once.  But  then  the  difficulty 
arises  that  as  no  one  of  them  has  its  distinct  field  of 
operation,  in  certain  cases  two  conceptions  will  come 
into  conflict.  How  shall  a  choice  be  made?  If  the 
legislator  recognizes  these  difficulties,  he  will  be  led  to 
decide  according  to  general  conceptions,  in  which  will 
be  reflected  something  of  his  taste  for  calm  or  for  activity. 
To  allow  a  value  to  man  as  such,  to  indemnify  all  injuries, 
to  regulate  the  conflict  of  interests  according  to  their 
relative  values,  is  to  favor  acquired  situations.  To 
encourage  or  punish  the  will  behind  the  deed  is  to  press 
toward  the  adoption  of  a  given  rule  of  conduct.  Mill 
was  to  some  extent  of  this  same  opinion,  when  he  said 
that  there  must  be  an  outside  principle  to  be  applied 
to  the  conflict  of  various  conceptions  of  justice.  For 
him  this  outside  principle  was  social  utility ,2*'  which 
shows  itself  in  a  form  more  imperative,  more  absolute, 
than  those  conceptions. 

In  treating  of  this  much  used  and  abused  idea  of  justice, 
one  thing,  in  our  opinion,  should  be  kept  in  view.  Jus- 
tice is  a  mold  in  which  many  ideas  may  be  run.  It  is  a 
secondary  idea.     When  a  first  principle  has  been  estab- 

«»  See  "Utilitarianism." 


§2731  JUSTICE  495 

lished  it  may  be  applied  with  justice.  After  saying 
that  men  must  act  prudently,  we  may  bring  in  justice 
to  complete  the  thought,  and  add:  When  a  person 
has  committed  an  imprudence  he  shall  be  penalized  in 
proportion  to  its  gravity.  If  a  tax  is  a  payment  for 
services  rendered  by  the  State,  justice  consists  in  making 
the  tax  proportionate  to  the  advantage  received.  If 
a  tax  is  a  sacrifice  required  by  the  common  interest,  a 
just  tax  should  be  progressive,  calculated  on  the  amount 
which  each  person  can  give  without  too  much  trouble. 
In  regard  to  the  same  institution,  justice  may  be  as  varied 
as  are  the  conceptions  of  the  purpose  of  that  institution. 
There  are  as  many  kinds  of  justice  as  there  are  con- 
ceptions of  an  institution. 

When  the  end  for  which  an  institution  exists  has  been 
recognized,  the  institution  may  be  organized  on  either 
of  two  systems.  The  proportion  may  be  established 
in  which  the  individual  has  acted  either  conformably 
with  or  in  opposition  to  such  end,  or  this  proportion 
may  be  wholly  disregarded.  The  first  system  would 
be  just,  the  second  unjust. 

After  all  in  what  does  justice  consist,  unless  in  complete 
comprehension  of  an  end  ?  If  the  principle  be  established 
that  in  every  society  imprudences  must  be  avoided, 
it  is  logical  to  punish  imprudences  in  proportion  to  their 
gravity. 

The  idea  of  justice,  thus  emptied  of  the  variable  content 
which  it  may  be  made  to  contain,  seems  no  more  than 
a  corollary  of  the  principles  which  have  been  adopted 
as  a  basis.  It  is  thus  unseated  from  the  high  place 
which  has  been  so  freely  assigned  to  it,  to  take  its  place 
in  a  lower  rank. 

Still,  though  only  a  form,  it  might  yet  be  of  great 
importance,  if  it  were  the  mold  in  which  all  social  con- 
ceptions might  assume  a  practical  form.     In  fact,  and 


496  RENÉ   DEMOGUE  [Ch.XVI 

here  is  where  the  trouble  begins,  each  idea  of  justice 
can  cover  only  one  aspect  of  a  situation  at  one  time; 
so,  since  this  aspect  may  not  always  be  present,  a  single 
conception  of  justice  does  not  apply  to  every  situation. 
Several  must  be  applied  at  the  same  time,  and  this 
ordinarily  leads  to  a  conflict,  which  is,  however,  rather 
a  conflict  of  principles  that  one  wishes  to  apply  justly 
than  of  opposing  ideas  of  justice. 

There  will  very  evidently  come  about  during  the 
struggle  a  reconciliation  between  diff'erent  conceptions 
of  justice,  a  toning  down  of  their  differences.  At  a 
certain  moment  a  modus  vivendi  will  suggest  itself,  and 
will  spread  rapidly,  thanks  to  the  instinct  of  imitation. 
It  is  in  this  connection,  says  Tarde,  that  jurists  can 
work  advantageously  in  the  interest  of  society.  For 
'  'They  do  not  treat  social  questions  from  their  most  un- 
yielding, most  abrupt  side,  that  of  theology:  desires, 
needs,  wills,  sentiments  often  born  in  struggle.  The 
jurist  christens  all  of  these  rights,  things  always  consid- 
ered to  be  in  accord;  and  starting  with  the  accredited 
principle  which  he  always  finds  at  some  moment,  he 
easily  decides  what  is  just  by  a  method  of  deduction 
resembling  that  used  in  geometry.  The  only  difference 
is  that  geometrical  atoms  never  vary,  while  legal  axioms 
change  slowly. "^^  In  spite  of  the  great  element  of 
illusion  contained  necessarily  in  every  hope  too  formal 
in  its  expression,  this  hope  does  contain  a  considerable 
share  of  practical  truth,  for  happily  these  conflicts  do 
not  always  seem  as  sharp  as  they  might  be  thought.^^ 

SI  Tarde,  "Opposition  Universelle,"  p.  415. 

"  At  any  rate  this  shows  us  that  it  serves  very  little  purpose  to  have 
proclaimed  with  Izoulet,  "La  Cité  Moderne,"  p.  429,  that  "The  identity 
of  interest  and  justice  is  the  fundamental  truth  which  must  be  considered 
unquestionable,"  that  "Justice  is  the  supreme  interest."  If  the  idea  of 
justice  is  so  many-sided,  how  can  it  coincide  with  interest,  and  with 
what  interest  does  it  coincide?  The  real  ground  of  conflict  is  far  from 
these  principles  of  preaching  or  practice  which  are  so  complacently 
repeated. 


§274]  JUSTICE  497 

§  274.  The  Value  of  Justice  Even  So  Understood. 
Does  justice,  even  so  understood,  as  a  formal  concept 
useful  to  complete  others,  deserve  the  importance  which 
has  been  assigned  to  it  and  ought  it  to  have  the  first 
place?  Does  it  owe  its  reputation  solely  to  the  fact 
that  by  serving  indifferently  for  the  practical  appli- 
cation of  all  the  great  ideas  which  form  the  ideal  of 
humanity,  it  shines  with  a  light  that  is  merely  a  reflection 
cf  their  glory? 

Its  own  peculiar  virtue,  in  the  last  analysis,  lies  in  an 
:*dea  of  equality.  But,  as  Jhering  says,  "Does  not  the  love 
of  equality  have  its  root  deep  in  the  most  shameful 
emotions  of  the  human  heart,  ill-will  and  envy?  Let 
no  one  be  happier  than  I  am,  and  if  I  am  miserable  let 
everybody  else  be  miserable  too."^^  That  human 
solidarity  requires  a  certain  equality  is  not  a  sufficient 
answer  to  this.  There  is  a  higher  ground,  a  possible 
answer:  that  it  is  desirable  that  humanity  as  a  whole 
develop  and  be  happy.  Here  is  an  elevated  postulate 
of  order  which  may  serve  as  a  support  for  the  idea  of 
justice. 

Justice,  however,  even  stripped  of  all  its  variability 
and  complexity,  and  reduced  to  the  idea  of  proportion- 
ality, collides  with  other  ideas.  One  collision  may  be 
with  the  principle  of  economy  of  means.  Justice  so 
conceived  may  be  too  complicated  to  suit  the  demand  of 
practical  life  for  rapidity  and  so  must  be  abandoned. 
Hence  the  tendency  to  eliminate  in  many  cases  the 
distinction  between  good  or  bad  faith,  which,  though 
just,  is  like  all  pyschological  questions  the  cause  of 
many  lawsuits. 

If  justice  be  conceived  in  another  light,  it  may  yield 
solutions  often  in  accord  with  security,  for  they  are  based 

"  "Zweck  im  Recht,"  French  éd.,  p.  245.     [See  chap,  xii,  footnote 
133.  p.  416  ante.—  Ed.] 


498  RENÉ   DEMOGUE  [Ch.xVI 

on  precise  elements  whose  relative  importance  is  clearly 
reflected  in  the  effects  produced.  Justice  at  the  same 
time  bends  to  a  great  extent  to  change,  for  its  basis 
may  be  existing  as  well  as  past  facts. 

Furthermore,  justice,  taken  provisionally  in  the  sense 
of  proper  proportion  of  merit,  cannot  always  be  com- 
pletely realized,  so  that  the  law  must  often  choose  the 
least  unjust  of  two  solutions.  So  when  an  accident  has 
resulted  from  a  slight  imprudence,  it  must  be  repaired 
by  him  who  was  imprudent,  even  if  he  will  be  much 
impoverished  in  consequence;  such  a  result  will  be  less 
disturbing  than  to  make  the  victim  bear  the  loss.  But 
is  it  really  just  that  slight  negligence  should  call  for  an 
enormous  indemnity? 

To  consider  a  final  trait  which  completes  the  rôle  of 
the  idea  of  justice,  its  egalitarian 2"*  tendencies  are  not 
everything.  Like  all  egalitarian  ideas,  they  satisfy 
persons  who  aspire  to  a  peaceful,  pleasant  life,  but  such 
a  life  is  not  entirely  possible.  Only  by  fighting,  and  by 
fighting  hard,  can  peace  be  assured;  so  there  will  come 
moments  in  the  life  of  societies  in  which  justice  must  be 
rated  cheaply.  Montesquieu  said  that  the  statue  of 
Liberty  must  at  times  be  veiled;  so,  we  add,  must  that 
of  Justice,  when  revolution  is  abroad  in  the  land.  Mo- 
ments come  when  it  is  necessary  to  pursue  and  punish 
a  few  persons  in  a  mob  with  a  severity  disproportionate 
to  their  share  of  responsibility.  Such  is  the  case  in 
strikes  marked  by  violence.  Such  a  measure  is  unjust 
as  not  corresponding  to  the  degree  of  responsibility  of 
the  persons  condemned;  it  is  unjust  as  lacking  that 
external  equality  of  which  Jhering  speaks,  according 
to  which  all  persons  in  the  same  situation  should  be 
equally  treated.     Nevertheless  it  is  necessary  and  to  be 

'<  [Or  "equalitarian"  ;  which  form  is  the  better  English  being  a  dis- 
puted question  that  only  the  future  can  settle. — EdJ 


§274]  JUSTICE  499 

commended.  Sometimes  one  must  cut  to  the  quick, 
surgical  operations  must  be  resorted  to  if  greater  evils 
are  to  be  escaped.  This  men  of  action  well  know, 
though  expression  of  their  opinion  is  less  frequent  than 
that  of  men  of  thought  who  heap  book  on  pamphlet  by 
their  writings  on  the  happiness  of  humanity. 

When  must  justice  be  thus  sacrificed?  Where  can 
security  be  found  if  justice  is  to  be  sometimes  abandoned? 
There  is  only  one  answer  to  this  difficult  question:  to 
hope  that  the  cases  will  be  few,  but  when  they  arise 
never  to  hesitate  to  treat  them  with  suitable  energy. 


500  RENÉ   DEMOGUE  [Ch.XVII 

CHAPTER  XVII 
EQUALITY 

EQUALITY  AS  RESTING  ON  POSTULATES,  NOT  ON  DEM- 
ONSTRATION—EQUALITY AN  ACCEPTABLE  COMPROMISE 
FOR  OPPOSING  CLAIMS  —  RELATION  OF  EQUALITY  AND 
SOLIDARITY  —  ITS  RELATION  WITH  SECURITY  —  ITS 
RELATION  WITH  LIBERTY  —  EQUALITY  AND  DIFFEREN- 
TIATION. 

§  275.  Equality  as  Resting  on  Postulates,  Not  on 
Demonstration.  Let  us  take  words  in  their  common 
meaning  and  study  justice  in  that  special  form  called 
equality. 

We  have  no  desire  to  attempt  its  history  and  to  show 
how  the  special  forms  peculiar  to  occidental  society 
brought  on  its  development,  why  it  was  revealed  for 
the  first  time  to  the  aging  Graeco-Roman  civilization, 
then  to  modern  Europe  and  young  America.  All  this 
has  been  learnedly  studied  by  others.^ 

The  egalitarian  idea  so  important  in  modern  times, 
the  basis  of  so  many  institutions  of  both  public  and 
private  law,  is  founded  on  the  fact  that  men  are  all 
exposed  to  suffering.  Equality  of  intelligence  or  of 
merit  among  men  does  not  exist. 

Without  doubt,  to  examine  the  matter  more  closely, 
men  have  not  all  the  same  capacity  for  suffering,  and 
suffer  unequally  from  the  same  circumstances.  But 
they  do  all  suffer.  And  it  seems  only  natural  that,  in 
the  face  of  a  certain  similarity  among  men  established 

»  See  Bougie,  "Les  Idées  Égalitaires,"  part  ii. 


§275]  EQUALITY  501 

by  nature,  society  should  establish  one  likewise.  Since 
every  man  has  capacity  for  suffering,  it  is  natural  that 
the  advantages  of  life  be  equally  shared  by  all,  so  that 
all  will  suffer  in  the  same  proportion.  It  is  even  natural 
that,  responding  to  a  sentiment  of  pity  for  our  fellows, 
society  should  be  so  organized  as  to  give  special  advan- 
tage to  those  who  suffer  the  most,  the  sick.  Equality 
thus  understood  is  an  acceptable  postulate.  The 
eminent  dignity  of  man  may  also  be  mentioned  —  it 
may  be  affirmed  that  men  in  association  have  a  value 
in  and  for  themselves  ;  it  may  be  said  that  the  first  prin- 
ciple of  egalitarianism  is  that  humanity  has  a  value  of 
its  own.2  But  it  is  questionable  whether  the  biped  form 
that  characterizes  the  human  species  is  enough  to  give 
the  lowest  grade  of  human  being  a  right  to  equal  treat- 
ment, except  to  assure  his  right  to  live;  in  any  event 
such  an  admission  is  merely  to  make  a  postulate. 

Aside  from  these  justifications,  which  rest  on  postu- 
lates, although  that  is  no  reason  for  rejecting  them, 
there  are  no  satisfactory  explanations  of  equality.  To 
found  equality  on  nature  is  to  say  that  we  should  imitate 
nature,  but  why  should  we?  Furthermore,  we  are 
coming  to  see  more  and  more  that  there  is  no  equality 
in  nature,  which  is,  on  the  contrary,  the  reign  of  in- 
equality and  of  strife  without  quarter.^ 

The  final  reason  for  the  theory  of  equality  is  the 
belief  that  every  man  is  called  to  a  certain  future,  which 
implies  a  metaphysical  belief  or  the  admission  of  certain 
postulates.  In  spite  of  their  value,  then,  egalitarian 
aspirations  are  capable  neither  of  scientific  proof  nor  of 
disproof.^  Equality  may,  however,  be  based  on  a 
negative  idea:   there  is  no  reason  why  one  man  should 

*  Bougie,  op.  cit.,  pp.  23ff. 

>  Dunan,  "Les  Principes  Moraux  du  Droit,"  RMM  1904,  p.  716. 

*  Bougie,  "La  Démocratie  devant  la  Science,"  RMM  1904,  p.  65. 


502  RENÉ   DEMOGUE  [Ch.XVII 

suffer  more  than  another.  But  this  argument  hides 
the  difficulty;  it  supposes,  in  order  to  treat  men  equally, 
that  equality  in  the  absence  of  anything  else  should 
be  the  rule.  It  would  be  no  better  to  base  equality, 
with  Leibnitz,  on  the  need  for  symmetry.  Though 
the  beautiful  may  respond  to  a  need  of  man  or  of  certain 
men,  it  must  give  way  before  stronger  reasons,  and  there 
are  often  practical  considerations  incompatible  with 
elegance  in  the  construction  of  society.^ 

§  276.  Equality  an  Acceptable  Compromise  for  Op- 
posing Claims.  Ideas  of  equality  are  nevertheless  a  great 
force,  which  must  be  reckoned  with;  they  rest  on  that 
jealousy  which,  regrettable  as  it  is,  still  exists  and  cannot 
be  forgotten.  Besides,  as  between  opposing  preten- 
sions, equality  appears  as  a  compromise  acceptable  to 
all;  no  one  side  loses  too  much  even  it  it  does  not  get 
everything  it  desires.  Finally  social  equality  fortifies 
its  argument  with  the  unworthiness  of  those  who  enjoy 
social  advantages  and  do  not  pay  back  to  society  a 
proportionate  return.  From  the  political  or  civil  point 
of  view  equality  is  often  the  result  of  the  insufficiencies 
of  aristocracies  or  of  chiefs. 

Based  chiefly  on  suffering,  the  common  heritage  of 
all  men,  equality  takes  a  more  definite  form  than  that 
imponderable  thing,  the  suffering  caused  or  to  be  caused 
to  each  individual  by  a  particular  evil.  It  becomes 
necessarily  objective  equality,  measured  equality,  like 
that  applied  in  universal  suffrage  or  in  the  intestate 
succession  of  children  to  their  parents'  estates.  We 
shall  study  this  sort  of  equality,  the  roughest  form  of 
justice. 

§  277.  Relation  of  Equality  and  Solidarity.  Equality 
seems  to  us  in  accord  with  solidarity.  In  the  numerous 
cases  in  which  there  seems  no  more  reason  why  one  party 

»  Jhering,  "Zweck  im  Recht,"  French  ed.  p.  245. 


§277]  EQUALITY  503 

should  bear  the  loss  than  the  other,  solidarity  and  equality 
lead  to  the  same  or  to  the  same  kind  of  solution.  When 
the  problem  is  to  decide  who  shall  suffer  the  loss  arising 
from  chance  or  from  one  of  those  slight  faults  which 
every  one  is  almost  sure  to  commit  at  some  time,  they 
lead  to  a  division  of  the  loss  between  the  interested 
parties  instead  of  putting  it  all  upon  one.  This  is 
notably  the  case  with  the  law  on  work-accidents.  Little 
consideration  was  paid  to  any  such  principle  by  the  old 
law,  imbued  with  respect  for  acquired  situations,  which 
proclaimed  the  principles  "res  perit  domino,"  "res 
perit  creditori,"  no  damages  need  be  paid  for  non- 
fulfillment because  of  pure  accident  or  vis  major 
(article  1148,  Civil  Code).  Such  solutions  would  be 
repellent  to-day.  For  the  tendency  of  the  courts  is  to 
give  damages  for  every  injury,  but  in  a  sum  less  than 
the  loss,  thus  roughly  evening  up  the  parties.  The 
decisions  admit  in  principle  that  joint  tortfeasors  should 
share  the  liability  even  after  one  alone  has  satisfied 
the  loss.^ 

§  278.  Its  Relation  With  Security.  It  would  be 
superfluous  to  add  that  equality  has  the  advantage  of 
being  in  accord  with  the  law  of  the  least  effort.  Its 
simplicity,  its  comprehensibility,  are  among  the  prin- 
cipal causes  of  its  success. 

On  the  other  hand,  equality  ill  accords  with  static 
security.  How  can  a  person  feel  secure  when  he  knows 
that  an  inequality  happening  by  chance  to-morrow  will  be 
at  once  effaced  ?     Bentham  noted  this,'^  but  he  also  called 

<> Baudry  2.nà  Barde,  "Obligations,"  ii,  no.  1305ff. 

'  "Principles  of  the  Civil  Code,"  ch.  xi.  [This  reference  is  to  the  French 
work,  first  published  in  Paris  in  1802,  based  on  manuscripts  handed 
by  Bentham  to  Dumont.  Recently  an  English  translation  by  C.  M. 
Atkinson  has  appeared  at  the  Oxford  University  Press  under  the  title 
of  "Bentham's  Theory  of  Legislation"  (2  vols.,  1914).  The  reader  is  re- 
ferred to  the  first  volume  of  this  work,  "Principles  of  Legislation  and 
Principles  of  the  Civil  Code." — Ed.] 


504  RENÉ   DEMOGUE  [Ch.XVII 

attention  to  the  point  that  time  might  bring  about  a 
certain  reconciliation  between  the  opposing  principles. 
The  day  on  which  the  owner  of  the  right  has  disappeared 
and  the  property  is  vacant,  equality  may  without 
inconvenience  be  restored  between  that  right  and  others.* 

On  the  other  hand  why  should  not  dynamic  security 
imply  that  privileges  may  be  acquired  by  certain  persons, 
even  if  the  result  might  be  inequality?  To  encourage 
action,  should  there  not  be  the  recompense  of  security? 

Again,  and  so  ideas  become  mixed,  equality  is  main- 
tained to  be  a  stimulant  to  action,  in  the  sense  that  if 
the  law  promises  equal  rewards  to  all  it  may  count  on 
greater  devotion.  ^ 

§  279.  Its  Relation  with  Liberty.  Consider  the  re- 
lations of  liberty  with  equality.  It  acts  in  a  different 
sphere.  It  is,  like  security,  a  means,  while  equality 
looks  only  to  final  results.  Liberty  tends  to  a  certain 
inequality,  but  while  it  implies  the  corollary  of  the 
absolute  maintenance  of  a  certain  sphere  of  activity 
and  certain  advantages  for  everybody,  definite  limits  are 
set  to  inequality. 

The  will,  which,  however,  may  be  weakened  by  cir- 
cumstances (for  their  examination  and  especially  for  the 
study  of  economic  influences  I  refer  to  the  theory  of 
the  will)  is  another  means  calculated  to  destroy  equality. 
Juridical  situations,  which  flow  partly  from  acts  of  voli- 
tion, differ  because  everyone  has  not  the  same  will.  To 
a  certain  extent,  it  is  true,  there  is  equality  because 
each  person  has  that  which  he  willed;  but  such  equality 
is  only  apparent.  Wills  do  not  all  take  shape  at  the  same 
moment;  some  are  earlier,  some  later,  so  that  only  he 
who  comes  first  can  get  what  he  wants.  Therefore  the 
ruling  principle  of  the  law  of  mortgage,  "prior  tempore 

8  Ibid.,  ch.  xii. 

•  See  Jhering,  *'Zweck  im  Recht,"  French  ed.  p.  246. 


§279]  EQUALITY  505 

potior  jure,"  is  just  as  true  in  the  law  of  obligations,  in 
that  a  certain  advantage  is  given  to  him  who  first  accepts 
an  open  offer,  begins  negotiations,  receives  payment, 
invokes  a  lease,  takes  possession  of  a  movable  which 
has  been  sold  (article  1141,  Civil  Code),  declares  the 
sale  of  a  credit  (article  1690),  applies  to  have  the  date 
fixed  of  a  document  not  made  before  a  notary  (article 
1328). 

In  sum,  equality  is  a  theory  of  results,  which,  if  not 
pushed  to  an  extreme,  now  collides  with,  now  favors, 
the  other  great  tendencies  which  dominate  the  law. 
But  it  is  not  only  restrained  by  their  opposition,  it  has 
its  own  peculiar  limitations.  It  applies  naturally  to 
cases  in  which  there  is  a  loss  or  a  profit  to  divide  among 
several  persons  and  there  is  no  other  basis  of  adjustment, 
such  cases  as  the  division  of  losses,  of  debts,  or  of  an 
inheritance.  But  what  use  shall  be  made  of  it  in  another 
field?  How  could  the  theory  of  equality  be  of  value  in 
settling  questions  of  the  formation  of  contracts,  of  the 
obligations  of  buyer  or  seller,  or  workman  or  employer, 
of  the  authority  of  precedent? 

§  280.  Equality  and  Differentiation.  This  last 
point  seems  to  us  very  important,  for  while  the  old 
inequality  of  castes  has  disappeared,  manifold  distinc- 
tions are  being  established  among  men  by  the  division 
of  labor  and  occupational  differentiation.  Some  see 
therein  such  great  complexity  that  they  conclude  for 
an  approximative  equality,  for  at  a  given  moment  one 
ceases  to  see  a  situation  so  sharply  defined  as  to  classify 
men  in  unequal  categories.^"  This  equality  is  socially 
true  in  large  measure.  Differentiation  establishes  a 
situation  which  is  neither  equality  nor  inequality.  But 
it  must  be  observed  that  many  circumstances  —  profits, 
salaries,  honors  even- — often  bring  different  things  into 
10  Parodi,  "Notion  d'Égalité  Sociale,"  RMM  1908,  pp.  857ff. 


506  RENE   DEMOGUE  [Ch.XVII 

the  same  class  —  that  is  to  say,  create  an  order  of  in- 
equahty. 

From  another  point  of  view,  the  legal  one,  differen- 
tiation really  means  leaving  the  sphere  of  equality  or 
inequality.  These  are  in  fact  two  distinct  zones.  Dif- 
ferentiation calls  for  a  regulation  adapted  to  the  social 
object  pursued  by  each  of  the  persons  in  conflict.  Here 
is  a  field  for  skillful  compromise  through  the  law.  It 
is  not  a  question  of  establishing  equality  —  that  would 
be  nonsense  —  between  employer  and  workman,  be- 
tween manufacturer  and  consumer,  nor  of  who  should 
command,  who  should  be  the  master  of  the  bargain; 
rules  must  be  made  adaptable  to  the  ends  which  persons 
pursue  each  in  his  own  way,  whether  these  persons  be 
considered  from  a  professional  point  of  view  or  not.  This 
does  not  imply  that  the  problem  can  always  be  com- 
pletely solved  ;   in  this  trait  it  is  like  many  others. 

We  feel  that  we  are  now  in  a  position  to  affirm  with 
more  force  that  the  idea  of  material  equality  can  be 
only  a  rule  of  limited  extent,  and  good  only  when  nothing 
better  can  be  found,  even  when  its  conflicts  with  other 
ideas  have  been  settled. 


«2811  LIBERTY  507 


CHAPTER  XVIII 
LIBERTY 

SUPERFICIAL  AND  PROFOUND  REASONS  FOR  ITS  IM- 
PORTANCE—VARIOUS CONCEPTIONS  OF  LIBERTY:  (1) 
LIBERTY  AS  A  CONSEQUENCE  OF  LIMITATIONS  ON  THE 
POWER  OF  LAW;  (2)  LIBERTY  AS  A  DOCTRINE  OF  DES- 
PAIR; (3)  LIBERTY  AS  THE  INTEREST  OF  THE  INDIVI- 
DUAL; (4)  LIBERTY  AS  A  SOCIAL  IDEAL  — THE  INFLU- 
ENCE OF  CONCEPTIONS  OF  LIBERTY  IN  PRIVATE  LAW  — 
DERIVATIVE  CONCEPTIONS  IN  THE  LAW  OF  OBLIGATIONS: 
(1)  THE  AUTONOMY  OF  THE  WILL;  (2)  RESPECT  FOR  THE 
SPHERE  OF  ACTIVITY  OF  OTHERS  — LIBERTY  AS  A  BUL- 
WARK FOR  STATIC  SECURITY  — LIBERTY.  WITH  RESPECT 
TO  THE  DURATION  OF  JURIDICAL  SITUATIONS  — LIB- 
ERTY AND  RESPONSIBILITY. 

§  281.  Superficial  and  Profound  Reasons  for  its 
Importance.  It  is  hardly  necessary  to  say  that  liberty 
occupies  a  very  large  place  in  the  law,  as  well  as  in 
history  and  in  the  life  of  society.  The  reasons,  however, 
why  it  has  proved  so  seductive  to  the  masses  at  certain 
periods  do  not  correspond  exactly  with  those  from  which 
it  draws  its  real  value, ^  as  we  shall  see  in  studying  it  not 
from  the  point  of  view  of  positive  law  ^  but  from  that  of 
the  legislator. 

Liberty  has  proved  seductive  as  the  antithesis  of  the 
conditioned,  the  complex,  which  is  the  ordinary  fact  of 

»  See  the  vague  definitions  sometimes  given,  cited  by  Schalz,  "Indi- 
vidualisme," p.  199. 

«  It  is  thus  alone  defined  by  Montesquieu,  "Esprit  des  Lois,"  Book  xi, 
ch.  iii. 


508  RENÉ   DEMOGUE  [Ch.  XVIII 

human  existence.  It  answers  to  the  notion  of  a  reaction 
of  the  ideal  against  the  facts  of  positive  hfe,  which  the 
human  mind  finds  itself  powerless  to  dominate  completely. 
Each  individual  imagines  that  under  a  régime  of  liberty- 
he  can  realize  his  dream;  this  is  particularly  true  of 
those  who  think  of  the  consequences  of  liberty  by  adopt- 
ing their  personal  points  of  view  —  the  consequent 
increase  of  their  personal  activity,  or  the  widening  of 
the  zone  in  which  they  will  be  left  to  the  enjoyment  of 
tranquility.  Persons,  on  the  contrary,  who  are  interested 
in  the  general  consequences  of  liberty,  frequently  believe 
that  it  will  result  in  greater  equality;  they  do  not  see 
that  it  may  very  possibly  bring  about  an  absolute  in- 
equality in  results,  and  not  e\cn  a  development  pro- 
portioned to  the  objective  merit  or  to  the  objective  worth 
of  the  individual.  Such  an  argument  in  favor  of  liberty 
offers  a  rather  specious  raison  d'être. 

The  profound  reasons  which  really  give  value  to  this 
word  liberty  are  numerous  but  quite  different,  and  lead  to 
certain  conceptions  which  we  shall  study  in  this  chapter. 

§  282.  Various  Conceptions  of  Liberty.  1  :  Liberty 
ASA  Consequence  OF  Limitations  on  the  Power  of 
Law.  Liberty  may,  according  to  a  first  opinion,  rest 
on  practical  necessity.  Society,  finding  itself  unable 
to  assure  the  application  of  certain  rules  which  it  con- 
siders good,  may  leave  everyone  free  to  follow  them  or 
not,  and  very  wisely,  for  nothing  so  lowers  the  standing 
of  the  law  and  of  the  law-giver  as  to  make  rules  which 
cannot  be  enforced.  But  such  a  doctrine  is  very  delicate 
in  its  application.  I  have  already  shown  that  law  and 
not-law,  if  not  two  entities,  are  at  least  two  extremes 
between  which  lie  a  thousand  intermediates.  At  what 
point,  and  how  often,  can  the  legislator  hope  to  translate 
his  will  into  a  law  sufficiently  alive  to  make  it  worth 
while  for  him  to  interfere? 


§282]  LIBERTY  509 

Unfortunately  this  conception  plays  but  an  insignifi- 
cant rôle.  The  legislator  is  too  much  impressed  with 
his  own  importance  to  recognize  the  limits  which  facts 
stronger  than  statutes  set  to  his  powers.  It  is  easy  for 
him  to  believe  not  only  that  he  is  all-knowing  but  also 
that  he  is  all-powerful.^ 

The  only  advantage  of  a  belief  in  the  omnipotence  of 
law,  a  belief  disproved  by  the  facts,  is  that  it  encourages 
the  hope  of  seeing  the  realization  of  an  ideal,  that  most 
tenacious  of  human  needs;  and  it  presents  the  disadvan- 
tage of  developing  the  need  for  law-making  to  excess 
and  of  bringing  forth  many  laws  stillborn  or  entirely 
ineffective  because  unenforceable. 

2:  Liberty  as  a  Doctrine  of  Despair.  Others 
see  the  foundation  of  liberty  not  in  a  rebellion  against 
the  narrow  wills  of  the  authorities,  but  in  the  incapacity 
of  our  minds  to  agree  on  certain  fundamental  points. 
Liberty  is  a  doctrine  of  despair;  society,  unable  to 
create  a  general  ideal  on  certain  points,  leaves  the  indi- 
vidual free  to  create  his  own.  So  it  is  with  religious 
liberty,  with  the  different  kinds  of  liberty  of  opinion. 
That  the  truth  may  not  be  recognized  as  such  by  all 
men  is  a  fact  which  cannot  be  lost  sight  of,  and  a  doctrine 
founded  upon  it  has  at  least  a  serious  basis. 

Other  theories  of  liberty  are  not  simple  deductions  from 
accepted  facts,  like  those  which  we  have  been  discussing, 
but  are  bound  up  with  particular  conceptions  of  life, 
to  the  practical  realization  of  which  liberty  is  necessary. 

3:  Liberty  as  the  Interest  of  the  Individual. 
Certain  persons  who  hold  to  the  principle  that  the  end 
of  life  is  the  satisfaction  of  the  interest  of  the  individual, 
thus  understanding  the  general  interest  as  the  sum  total 
of  actual  particular  interests,  deduce  the  principle  that 
the  object  of  the  law  being  the  protection  of  individual 

«  See  Cruet,  "La  Vie  du  Droit,"  p.  17. 


510  RENÉ   DEMOGUE  [Ch.  XVIII 

interest,  it  should  recognize  that  each  individual  is  best 
able  to  tell  what  will  suit  his  advantage  or  his  pleasure. 
He  should  be  free,  in  order  that  he  may  be  permitted  the 
pleasure  of  getting  what  he  wants,  by  the  methods  which 
suit  him.  Liberty  thus  appears  to  have  a  value  in  pro- 
portion to  the  pleasure  which  it  brings.  Such  a  theory 
will  logically  lead  to  unlimited  liberty. 

4:  Liberty  as  a  Social  Ideal.  Liberty  may 
finally  be  looked  upon  as  simply  a  means  of  realizing  a 
social  ideal  different  from  the  pleasure  which  comes  from 
the  free  choice  of  the  nature  and  manner  of  one's  activity. 
Its  advantage  may  be  held  to  lie  in  the  consideration  that 
it  excites  activity  to  a  high  degree.  Unrestrained, 
delivered  over  to  the  competition  which  liberty  may 
provoke,  to  the  risks  which  come  in  its  train,  activity 
is  multiplied  and  developed,  the  ideal  of  materialism  is 
attained:  greater  production,  more  sales,  more  enjoy- 
ment procured  for  everyone.  The  intellectual  ideal  of 
the  struggle  of  ideas  is  another  result. 

The  value  of  this  conception  of  liberty  is  very  hard  to 
determine.  It  assumes  an  acceptance  of  the  ideal  of  the 
greatest  possible  activity,  an  assumption  which  contains 
a  postulate  and  which  depends  largely  on  individual 
tastes.  Furthermore,  this  conception  of  liberty  divides 
into  two  branches.  Liberty  may  be  desired  as  the  mother 
of  competition,  that  is,  of  an  almost  equal  struggle  — 
a  conception  which  will  lead,  by  combining  liberty  with 
the  desire  for  equality,^  to  the  exclusion  of  liberty  when 
it  ends  in  monopoly  and  in  excessive  concentration,  for 
it  must  not  be  forgotten  that  monopoly  and  competition 
are  fruits  of  the  same  tree.  Or  liberty  may  also  be  de- 
sired   because   the   best   will    prevail    in   strife.     This, 

«  On  this  mingling  of  the  ideas  of  liberty  and  equality,  see  Parodi, 
"Liberté  et  Égalité,"  RMM  1900,  p.  381.  He  conceives  liberty  only  as 
sufficiently  limited  that  the  liberty  of  one  cannot  actually  destroy  that 
of  another. 


§282]  LIBERTY  511 

however,  is  only  a  half-truth,  and  it  causes  the  rejection 
of  liberty  in  many  cases. 

§  283.  The  Influence  of  Conceptions  of  Liberty  in 
Private  Law.  In  the  sphere  of  private  law,  and  more 
especially  in  that  of  the  law  of  obligations,  these  last 
two  are  almost  the  only  conceptions  of  liberty  which 
have  any  influence. 

Liberty  as  a  doctrine  of  despair  has  hardly  more  than 
one  application;  it  furnishes  a  limitation  based  on 
public  policy,  which  is  protected  by  article  6  of  the  Civil 
Code  from  the  derogatory  influence  of  freedom  of  con- 
tract. Public  policy  is  the  sum  of  the  ideas  which  society 
believes  to  be  true  and  has  very  clearly  adopted  as  final 
by  repelling  liberty  at  whatever  point  truth  is  believed 
to  hold  its  own.  This  results  in  the  variable  character 
of  public  policy.  It  varies  with  the  more  or  less  clear, 
more  or  less  inclusive  ideas  of  the  public  authorities, 
who  do  not  admit  that  their  way  of  regarding  things  is  a 
sentiment,  but  never  accept  the  possibility  of  anyone 
else  having  a  dififerent  sentiment.  The  French  theory 
of  public  policy  is  variable,  except  when  the  law  is  care- 
fully phrased  in  order  to  satisfy  the  need  for  security; 
thus  social  change  is  favored  in  what  is  perhaps  an 
exaggerated  and  dangerous  fashion,  for  the  security  of 
transactions  may  be  afïected. 

The  social  ideal,  however,  essentially  complex  as  it  is, 
implies  the  play  of  several  ideas  whose  influence  must 
be  relative,  and  from  this  classification  it  results  that  the 
limitation  on  liberty  called  public  policy  varies  in  its 
effect  according  to  the  case;  from  the  point  of  view  of 
private  international  law,  for  instance,  there  are  both 
an  absolute  and  a  relative  public  policy,  and  in  municipal 
law  there  are  distinctions  to  which  we  shall  later  refer. 

Likewise,  the  doctrine  of  liberty  as  an  assertion  of  the 
impotence  of  authority  has  influenced  article  1142  of  the 


512  RENÉ   DEMOGUE  [Ch.XVIII 

Civil  Code,  providing  for  damages  for  breach  of  obliga- 
tions to  do  or  to  refrain  from  doing  certain  things.^ 
—  at  least  if  the  article  be  understood  as  applying  only 
to  cases  in  which  a  satisfactory  execution  is  not  materi- 
ally enforceable. 

§  284.  Derivative  Conceptions  in  the  Law  of  Obligations. 
1:.The  Autonomy  of  the  Will.  Conceptions  of 
liberty  as  a  means  of  realizing  a  social  ideal,  however, 
are  especially  important  in  the  law  of  obligations.  They 
are  the  inspiration  of  the  two  great  liberal  principles  of 
the  autonomy  of  the  will  and  respect  for  the  sphere 
of  activity  of  others.  With  them  is  bound  up  the 
idea  of  limitation  in  time  of  the  effects  of  juridical 
acts. 

The  principle  of  the  autonomy  of  the  will  is  one  of  the 
most  important  in  private  law.  Through  its  action, 
an  individual  is  under  obligation  only  when  he  has  so 
willed,  and  possesses  rights  only  to  the  extent  that  he  has 
willed  their  possession.  To  this  idea  is  related,  outside 
the  sphere  of  obligations,  the  principle  of  freedom  in  the 
creation  of  rights  in  realty  (article  686,  Civil  Code),  but 
especially,  in  the  matter  of  obligations,  freedom  of  con- 
tract, a  principle  of  immensely  wide  application.  It  not 
only  permits  individuals  to  detemiine  at  their  pleasure 
the  effects  of  juridical  acts,  and  thus  to  create  innominate 
contracts,  but  it  allows  them  to  regulate  as  they  please 
the  formation  of  contracts,  and  their  mode  of  extinction, 
whether  by  payment,  by  compensation,  or  by  pre- 
scription (in  shortening  the  period,  for  example),  and 
even,  to  a  certain  degree,  their  method  of  proof. 

The  autonomy  of  the  will  is  also  at  the  base  of  that 
method  of  interpretation  of  obligations  which  consists 
in  seeking  the  common  intention  of  the  parties  (article 

s  According  to  this  article,  these  obligations  in  case  of  non- performance 
are  satisfied  by  paying  damages. 


§284]  LIBERTY  513 

1156,  Civil  Code),  for  it  ends  in  giving  force  to  a  tacit 
will  in  the  absence  of  an  express  intention. 

If,  however,  the  conception  of  liberty  as  the  satis- 
faction of  everyone's  desires  leads  to  the  admission  of  a 
very  large  autonomy  of  will  in  juridical  acts,  it  also 
facilitates  modifications  and  suppressions  of  juridical 
situations  established  by  the  will  of  the  contracting 
parties,  without  regard  for  third  parties  who  may  have 
depended  on  the  continuance  of  a  state  of  fact  juridically 
established  for  a  given  time.  In  this  theory  the  com- 
promise between  security  and  that  liberty  which  forces 
the  admission  of  everyone's  right  to  realize  what  he 
wills  in  spite  of  what  he  willed  previously,  comes  about 
by  considering  as  irrevocable  only  that  expression  of  will 
which  has  been  recognized  by  others  through  acceptance, 
and  to  the  extent  to  which  third  parties  do  not  renounce 
the  advantage  of  the  right  which  they  have  acquired. 
A  contract  is  not  revocable  by  the  will  of  all  contracting 
parties,  but  it  is  always  so  if  all  agree.  This  is  a  solid, 
clearly  defined  conception,  but  it  is  somewhat  narrow, 
and  does  not  make  room  either  for  the  necessity  of 
modifying  certain  contracts  unilaterally  or  for  that  of 
taking  into  account  the  calculations  of  third  parties  — 
as  if  every  established  right  were  not  a  social  fact  whose 
effect  travels  from  one  person  to  another! 

If  liberty,  however,  be  conceived  as  a  goad  of  com- 
petition, that  social  ideal  of  strife  with  nearly  equal 
weapons  naturally  leads  to  self -restriction.  The  ac- 
cepted point  of  departure  induces  the  rejection,  as 
against  public  policy,  of  contracts  which  give  birth  to 
real  power;  trusts,  contracts  which  put  one  party  at  the 
mercy  of  the  other,  who  is  made  judge  of  certain  points, 
who  may  order  or  break  at  his  own  pleasure.  The 
colorless  article  1129  of  the  Civil  Code  which  requires 
a  determined  or  at  least  a  determinable  object  may, 


514  RENÉ   DEMOGUE  [Ch.XVIII 

under  this  theory,  take  on  a  more  cavalier  air  and  serve 
as  a  weapon  against  many  clauses.^ 

In  any  case  the  autonomy  of  the  will  only  brings  us 
to  the  establishment  of  relations  between  contracting 
parties. 

2:  Respect  for  the  Sphere  of  Activity  of 
Others.  The  same  idea  of  liberty  has  inspired  a  second 
and  no  less  important  principle,  that  each  individual 
should  respect  the  sphere  of  activity  of  another  J  The 
consequences  of  this  principle  are  numerous  and  varied, 
and  may  be  found  in  several  doctrines  of  private 
law,  the  chief  of  which  may  be  briefly  indicated.  A 
money  obligation  to  the  creditor's  advantage  cannot 
be  created  against  his  will,  except  in  very  special  cases 
(article  1121,  Civil  Code).  The  owner  cannot  be  com- 
pelled to  pay  for  a  building  constructed  on  his  land 
without  his  order  (article  555,  Civil  Code)  ;  an  implied 
agent  cannot  bind  his  principal  except  so  far  as  acts  of 
conservation  are  concerned.  According  to  this  theory 
a  third  person  cannot  be  bound  without  a  proper  power, 
and  then  only  to  the  extent  of  the  power.  Likewise  a 
person  promises  to  act  only  under  the  sanction  of  dam- 
ages: this  is  what  article  1142,  Civil  Code,  proA-ides  by 
saying  that  obligations  to  do  or  to  refrain  are  canceled 
by  payment  of  damages.  So  a  promise  for  another  does 
not  bind  a  third  party  (article  1119,  Civil  Code);  even 
very  advantageous  acts  do  not  advantage  third  persons 
in  whose  favor  they  were  done  unless  those  persons 
have  accepted  them.  Such  is  the  case  in  stipulations 
for  another,  donations  (article  933,  Civil  Code),  legacies, 
or  suretyship.  Juridical  acts  have  no  effect  either  in 
favor  of  or  against  third  parties  (article  1165,  Civil  Code), 

6  See  the  author's  study  of  "Des  Droits  Eventuels,"  p.  30. 

'  This  idea  had  great  influence  upon  political  philosophers  of  the  1800s. 
Bertauld.  "Liberté  Civile,"  ch.  vii  ("Benjamin  Constant")  and  ch.  viii 
("Daunou"). 


§284]  LIBERTY  515 

judgments  have  only  a  relative  character  of  finality 
(article  1351,  Civil  Code).  It  is  much  more  important 
that  he  who  has  no  interest  has  no  right  of  action,  which 
means  not  only  that  a  person  cannot  bring  suit  without 
an  interest,  but  also  that,  the  interested  parties  being 
known,  others  cannot  take  action,  but  must  all  respect 
their  ability  to  act  or  not  according  to  their  own  pleasure. 
The  rule  that  "no  one  in  France  pleads  by  proxy"  is  de- 
rived from  the  same  principle  ;  at  bottom,  it  is  the  reason 
for  the  inadmissibility  of  many  suits  which  trade- 
unions  [syndicats]  and  other  groups  might  wish  to  bring. 
Finally,  the  formerly  admitted  rule  "in  rem  versum"  is 
to  be  traced  to  the  principle;  it  is  a  happy  advantage, 
which  cannot  render  the  person  who  gets  the  benefit 
of  it  liable  to  pay  indemnity. 

This  group  of  solutions,  of  which  we  cite  only  the 
most  striking,  is  in  the  code  of  1804,  or  was  in  the  minds 
of  the  jurisconsults  of  the  commencement  of  the  1800s, 
in  whose  writings  at  least  we  see  its  reflection.  It 
accords  with  that  respect  for  human  personality  which 
philosophers  have  so  often  exalted.  More  exactly,  it 
marks  out  the  limits  of  what  I  would  call  the  juridically 
free  sphere  of  action  of  each  individual;  it  permits 
certain  acts  to  be  done  without  interference,  and  guaran- 
tees against  the  doing  of  certain  others  except  with  the 
consent  of  the  party  concerned.  This  theory  is,  then, 
the  counterpart  of  that  preceding;  to  "every  man  may 
do  what  he  wants"  it  adds,  "but  he  cannot  compel 
another  to  submit  to  the  effect  of  his  acts."  Its  object 
is  to  assure  equality  in  liberty,  so  that  we  have  here 
not  pure  liberty,  but  liberty  as  the  leaven  of  competi- 
tion.* 

8  This  was  the  peaceful  ideal  of  the  bourgeois  of  1830.  In  spite  of  the 
July  barricades,  the  liberty  desired  was  not  of  too  high  an  order,  but 
healthy  competition  in  a  small  way  between  neighboring  shopkeepers, 
knowing  how  to  conduct  their  little  affairs  agreeably  and  quietly. 


516  RENÉ   DEMOGUE  [Ch.XVIII 

The  system  is  logical  and  solidly  put  together.  It 
dominated  the  legal  mind  during  the  1800s.  It  is, 
however,  open  to  criticism.  This  solid  structure,  of 
the  style  of  the  Restoration,  sharp-angled  and  stiff, 
allows  no  place  for  an  important  idea:  economy  of 
time  and  of  effort.  It  is  often  superfluous  to  require 
the  consent  of  a  third  party  to  an  act  which  will  affect 
him;  if  he  is  to  gain  by  it  why  should  he  not  benefit  at 
once?  This  situation  started  a  movement  to  extend 
the  juridical  effect  of  acts,  which  has  resulted  in  the 
theory  of  the  promise  in  favor  of  a  third  party  con- 
ferring a  right  upon  him  immediately,  in  the  absence  of 
revocation^;  it  has  resulted  in  the  obscure  extension  of  the 
quasi-contractual  "expenses  by  an  unauthorized  agent"; 
in  the  unfortunate  attempt  of  the  theory  of  the  party 
representing  opposing  interests  in  suits  of  filiation;  in 
the  theory  that  the  transfer  of  a  debt  presumes  the  con- 
sent of  the  creditor, ^°  and  also  in  the  modern  theory  of 
an  offer  as  binding  in  itself  and  to  a  certain  extent 
irrevocable.  There  is  nothing  to  prevent  further  prog- 
ress in  this  direction.  Why  is  suretyship  still  a  contract, 
and  not  a  unilateral  act  of  giving  security  for  the  sol- 
vency of  the  debtor,  just  as  is  now  the  abandonment  of 
an  easement  or  the  release  of  a  debt?  Why  should  not 
a  gift  or  an  unconditional  legacy  be  presumed  ac- 
cepted? In  such  cases  should  not  unilateral  acts  extend 
their  empire  at  the  expense  of  contract  ?^^  Why  should 
not  one  person  be  allowed  to  bring  or  defend  suits  for 
another  when  convenient? 

There  are  stages  on  this  road.  Law,  in  presuming  the 
acceptance  of  a  new  juridical  situation,  makes  an  as- 

'  See  Lambert,  "Stipulation  pour  Autrui." 

1»  SeeGaudemet,  "Cession  des  Dettes." 

"  This  is  the  reason  for  the  element  of  error  in  the  well-known  question 
of  the  respective  importance,  with  regard  to  the  future,  of  contractual 
and  statutory  obligations.  The  future  of  unilateral  acts,  also,  should 
not  be  left  out  of  consideration. 


§284]  LIBERTY  517 

sumption  that  is  almost  always  reasonable,  as  men  have 
in  general  the  same  desires.  But  it  may  leave  one 
way  open  for  escape;  it  may  permit  a  manifestation  of 
will  to  the  contrary  within  a  given  time.  Or  a  mixed 
situation  may  be  established  like  that  provided  for  in 
article  1121  of  the  Civil  Code  for  the  case  of  stipulation 
for  another;  the  third  party  acquires  at  once  a  right 
which  he  may  accept  or  refuse,  his  acceptance  simply 
making  irrevocable  that  right  which  he  has  previously 
acquired. 

§  285.  Liberty  as  a  Buhvark  for  Static  Security.  How 
may  this  last  idea  of  liberty,  as  the  germ  of  competition, 
be  reconciled  with  the  others  with  which  the  legislator 
must  also  be  concerned  ? 

Its  strength  and  its  weakness  are  easy  to  see  in  our  law, 
pervaded  as  it  is  by  the  Liberal  ideology  of  the  last 
century.  This  aspect  of  liberty  agrees  admirably  with 
respect  for  static  security;  it  may  even  be  said  that 
liberty  is  a  bourgeois  doctrine  because  it  assures  security  .^^ 
Everybody  has  a  little  legal  realm  in  which  he  is  master, 
and  nothing  could  be  more  agreeable  to  a  calm  and  limited 
ideal  ;  as  the  liberty  of  one  should  not  encroach  on  that 
of  the  rest,  nothing  would  better  suit  a  narrow  mind. 

In  all  cases  the  owner  of  a  right  is  sure  to  keep  it 
because  he  can  be  put  under  obligations  only  when  he 
has  himself  willed  it.  Within  the  rather  far  away  limits 
of  public  policy  everyone  does  what  he  wants.  That 
is  the  result  of  this  kind  of  liberty. 

Such  liberty,  however,  is  at  bottom  in  opposition  to 
the  continual  necessity  for  social  rearrangements.  If  it 
be  admitted  that  a  right  once  owned  is  always  owned, 
the  right,  though  useless  or  even  harmful,  will  always 

12  The  connection  between  liberty  and  security  is  so  close  that  Benlham 
says  that  liberty  is  only  security  against  injury  to  the  person.  "Prin- 
ciples of  the  Civil  Code,"ch.  ii.    [See  footnote?,  preceding  chapter. — Ed.] 


518  RENÉ   DEMOGUE  [Ch.  XVIII 

remain  in  its  owner.  A  right  of  property  is  not  affected 
by  the  circumstance  that  the  property  itself  is  useless 
to  the  owner  and  would  be  very  useful  to  another. 
The  statute  may  well  say  in  such  a  case  that  the  juridical 
situation  might  or  even  should  be  changed,  but  to  change 
it  would  be  an  infringement  of  security.  On  the  other 
hand,  such  liberty,  while  it  means  security  for  those  in 
possession — "beati  possidentes,"  we  are  tempted  to  say — 
does  not  encourage  activity  on  the  part  of  third  persons 
who  find  it  an  obstacle  in  their  path.  It  implies,  indeed, 
a  régime  which  takes  into  consideration  the  real  and  not 
the  expressed  will.  An  act  done  within  the  legal  preserve 
of  another  does  not  at  once  create  an  irrevocable  right. 
So  the  Civil  Code  decides  in  cases  of  promises  for 
another's  benefit,  legacies,  or  gifts,  which  to  be  perfected 
presuppose  acceptance  by  third  parties  —  beneficiary, 
legatee,  or  donee.  Under  this  régime  the  law  is  slow  to 
allow  compensation  for  him  who  has  built  upon  another's 
land,  for  that  would  be  to  oblige  the  owner  to  ratify 
changes  on  his  own  property,  and  so  to  infringe  his 
liberty.  Under  this  régime,  also,  one  hesitates  to  say 
that  implied  agency  permits  any  act  to  be  done  in 
another's  interest,  for  this  might  run  counter  to  his  ar- 
rangements. It  is  because  of  this  régime  that  the  theory 
of  "in  rem  versum"  has  been  only  gradually  developed, 
for  it  goes  against  the  very  principle  of  liberty,  when 
the  enrichment  has  taken  place  contrary  to  the  wishes 
of  the  enriched. ^^ 

It  would  be  easy  to  continue,  in  the  name  of  dynamic 
security,  to  try  the  case  of  liberty  thus  conceived  from 
the  point  of  view  of  civil  law.  Let  us  limit  ourselves 
to  the  statement  that  in  a  general  way,  its  object  being  to 

1'  See  Ripert  and  Tesseire,  "Essai  d'une  Théorie  de  l'Enrichissement 
sans  Cause  dans  le  Droit  Civil  Français,"  RDC  1904,  p.  727;  Ripert, 
"Examen  Doctrinal,"  RCL  1907,  p.  207. 


§285]  LIBERTY  519 

reserve  to  every  one  a  free  sphere  within  which  he  may 
operate  or  not  as  he  wills,  liberty  diminishes  social 
activity,  just  as  the  recognition  of  great  estates  and 
great  fortunes  as  objects  of  rights  and  not  of  duties  may 
bring  about  enormous  social  losses. 

Observe  also  that  while  these  observations  apply 
especially  to  civil  liberty  as  conceived  by  the  Civil  Code, 
that  is,  to  egalitarian  liberty  as  the  instigator  of  activity 
and  of  limited  competition,  it  would  be  almost  the  same 
with  liberty  understood  as  a  means  for  the  direct  satis- 
faction of  interests,  which  leads  to  about  the  same 
consequences.  The  liberty  of  the  bold  is  favored  by  the 
liberal  theory,  taken  at  this  angle  —  such  institutions 
as  trusts  or  boycotts  will  be  admitted;  but  it  will  not 
allow,  any  more  than  the  other,  an  infringement 
of  another's  juridical  sphere  of  action  without  his 
consent. 

§  286.  Liberty,  with  Respect  to  the  Duration  of  Juri- 
dical Situations.  Liberty  deserves  consideration  from 
yet  another  aspect,  that  of  duration.  It  is  possible  to 
conceive  a  restriction  on  liberty  in  the  name  of  liberty 
itself.^^  Thus  the  law  prohibits  contracts  of  service 
for  life  (article  1780,  Civil  Code),  leases  in  perpetuity 
(Laws  of  Dec.  18-19,  1790),  or  agreements  respecting 
future  inheritances.  Certain  things  are  admittedly 
illicit,  such  as  a  promise  to  marry  or  not  to  marry,  or 
not  to  change  one's  last  will,  or  the  renunciation  of  a 
prescriptive  right  not  yet  accrued  (article  2220,  Civil 
Code).  Such  restriction  of  present  in  favor  of  future 
liberty  is  a  special  conception  which  favors  future  in- 
terests to  the  detriment  of  those  of  the  present.  It  is 
a  process  with  which  we  are  already  familiar,  and  which 
consists  in  providing  for  social  development  by  the 
interdiction  of  an  act  which,  though  providing  security, 

"  See  Bertauld,  "Liberté  Civile,"  p.  410. 


520  RENÉ   DEMOGUE  [Ch.XVIII 

would  be  too  rigid .  It  is  a  form  of  negative  liberty.  The 
object  is  to  assure  the  satisfaction  of  future  interests 
which  we  know  either  not  at  all  or  very  little.  Men 
of  the  future  and  men  of  to-day  considered  in  the  future 
are  assured  a  sphere  of  free  activity.  This  aspect  of 
liberty  completes  the  picture  of  that  liberal  spirit  which 
was  so  dear  to  the  bourgeois  of  the  1800s.  It  is  rather 
a  liberty  without  breadth.  For  does  man,  tormented 
by  a  thirst  for  infinity,  recognize  anything  as  great 
which  does  not  contain  a  grain  of  the  infinite!  It  shows 
a  rather  hidebound  spirit  without  breadth  of  view  which 
fears  to  engage  the  future.  It  is  wisdom,  in  truth,  but 
a  narrow  wisdom. 

This  form  of  liberty,  or  of  restriction  of  liberty,  will 
be  received  or  rejected  according  to  the  view  taken  of 
the  need  for  protection  of  future  interests.  It  all  de- 
pends on  whether  their  mode  of  satisfaction  shall  be 
fixed  in  advance  or  whether  the  field  shall  be  left  free, 
whether  the  future  shall  be  regulated  or  reserved.  It 
is  a  question  of  the  relative  importance  of  security  and 
social  change. 

All  this  does  not  imply  that  the  problem  should  always 
be  presented  as  a  definite  choice  between  two  plain 
conceptions.  Here  as  always  the  famous  reconciliation  of 
order  and  movement  is  not  a  pure  myth .  It  is  sometimes 
possible.  It  may  be  realized,  for  example,  in  the  cases  of 
the  freedom  to  create  endowments  with  the  possibility 
of  modifying  them  to  suit  future  needs;  of  the  liberty  of 
corporations,  with  the  possibility  of  a  change  in  their 
by-laws  or  charter  at  a  special  meeting;  of  the  possi- 
bihty  of  a  contract  for  an  indefinite  term  with  the 
liberty  to  break  off  on  reasonable  grounds  without 
payment  of  damages  (article  1780,  Civil  Code)  ;  of  the 
right  to  create  a  perpetual  corporation  with  the  privilege 
of  dissolution  (article  1869,  Civil  Code)  ;    and  finally,  of 


§286]  LIBERTY  521 

the  possibility  of  creating  perpetual  juridical  situations 
which  may,  however,  be  changed,  subject  to  compen- 
sation (articles  530  and  1911,  Civil  Code). 

Modification,  rescission,  right  of  repurchase,  are  three 
ways  of  lessening  these  struggles  of  liberty  against  itself, 
of  present  against  future  interest,  of  security  against 
social  change.  Like  all  compromises  these  are  imperfect, 
they  neither  result  in  a  complete  security  or  in  a  complete 
liberty;  but  such  results  astonish  us  no  more. 

§  287.  Liberty  and  Responsibility.  Let  us  now  take 
up  the  questions  left  untouched  by  the  theory  of  liberty, 
whichever  of  the  various  conceptions  of  it  we  have  pre- 
sented be  the  one  to  be  adopted.  The  theory  of  civil 
liberty  covers  the  relations  of  contracting  parties  be- 
tween themselves  and  with  third  parties,  but  there  is 
one  important  point  which  it  does  not  settle,  or  more 
properly  for  which  it  gives  two  solutions,  little  in  har- 
mony with  each  other;  that  point  is  the  problem  of 
responsibility. 

In  criminal  and  public  law,  even  everywhere  in  a 
more  general  way,  a  bond  is  established  between  the 
two  ideas  of  liberty  and  responsibility.  This  is  true 
not  only  in  speaking  of  moral  liberty  as  opposed  to 
determinism,  but  also  in  regard  to  liberty  as  opposed 
to  physical  or  moral  coercion,  that  is,  the  coercion  of 
palpable  material  facts  which  can  be  observed.  It 
is  evident  that  responsibility,  in  such  cases,  is  a  con- 
sequence of  liberty;  for  whoever  takes  the  subjective 
point  of  view  in  penal  law  by  that  very  fact  considers 
that  punishment  must  come  in  where  there  is  will,  since 
it  seeks  to  repress  the  will  and  to  modify  character,  the 
source  of  volition.  The  view  here  adopted  is  therefore 
satisfactory.  In  fact,  without  discussing  whether  there 
can  be  responsibility  without  liberty,  it  must  be  recog- 
nized, in  an  inverted  sense,  that  whoever  admits  the 


522  RENÉ   DEMOGUE  [Ch.XVIII 

theory  of  liberty  may  easily  deduce  from  it  the  idea 
of  responsibility. 

It  is  otherwise  in  the  law  of  private  rights  when  it  is 
sought  to  connect  responsibility  with  liberty,  not  philo- 
sophical or  political,  but  juridical,  so  to  speak.  This 
may  be  done  in  two  different  ways.  It  may  be  said 
that  each  person's  sphere  of  activity  should  be  fully 
respected,  and  therefore  any  damage  done  it  should  be 
fully  repaired,  even  in  the  absence  of  fault.  The  prin- 
ciple of  causality  is  thus  substituted  for  that  of  respon- 
sibility, strictly  speaking.  This  is  an  objective  con- 
ception of  responsibility,  a  rule  which  gives  full  security 
to  those  in  possession,  Or,  with  a  certain  social  ideal  in 
view,  that  of  wills  directed  towards  a  profitable  activity, 
it  may  be  said  that  an  individual  is  responsible  only 
for  that  which  he  has  willed,  with  the  result  of  a  weaken- 
ing of  responsibility  in  proportion  as  the  question  is  one 
of  damage  not  sought,  but  simply  arising  from  fault 
or  chance  —  in  proportion  as  the  question  is  one  of  the 
direct  or  indirect  consequences  of  the  act.  It  then 
becomes  as  much  a  form  of  justice  as  of  liberty. 

It  is  very  hard  to  make  a  choice  between  these  points 
of  view;  this  is  so  true  that  even  the  Civil  Code  has 
shuffled.  Article  1382  requires  fault,  but  makes  the 
responsibility  equal  the  detriment;  articles  1147  and 
following  are  in  the  same  spirit  (aside  from  the  question 
of  proof);  but  article  1150  distinguishes,  in  cases  in 
which  there  was  no  fraud,  between  injury  foreseen  at  the 
time  of  the  contract  and  that  not  foreseen,  and  enforces 
liability  only  for  the  first.  Article  1151  excludes  the 
indirect  consequences  of  fault.  On  the  other  hand, 
articles  1385  and  1386,  if  not  1384  as  recent  theories 
maintain,  establish  liability  without  fault. ^^ 

"  But  evidently  the  ruling  idea  of  the  Code  is  that  expressed  in  article 
1382,  which  favors  the  security  of  the  person  who  acts.     This  is  singular, 


§287]  LIBERTY  523 

This  hesitation  is  not  astonishing.  The  theory  of 
responsibihty  is  essentially  one  of  the  apportionment  of 
losses,  just  as  is  in  fact  that  of  "in  rem  versum,"  and  on 
whatever  side  the  burden  is  laid,  whether  that  of  the 
victim  or  that  of  the  author  of  the  injury/''  liberty  is 
indirectly  diminished.  The  legislator  in  such  cases 
must  appeal  to  an  ideal,  a  principle  of  public  policy, 
other  than  liberty  itself. 

Far  from  clearing  up,  the  problem  grows  darker  still, 
if  we  try  to  see  what  is  to  be  protected  by  the  theory  of 
responsibility.  I  have  spoken  of  a  sphere  of  activity. 
What  does  that  expression  hide  if  not  the  probabilities 
which  a  person  was  able  to  expect  in  the  ordinary  course 
of  events,  both  natural  and  social  ?^^  The  effect  of 
responsibility  is  to  change  probability  into  cold  fact. 
It  is,  I  might  say,  a  crystalization  of  the  statu  quo. 
The  law  is  only  able  to  apply  a  rule  very  sharp,  very 
brutal,  to  the  complex  degrees  of  responsibility  with 
which  it  deals,  and  so  the  limit  to  which  a  person  can  go 
without  engaging  his  responsibility  is  extremely  hard 
to  establish.  Bertauld  and  Dupont-White,  in  parti- 
cular, have  already  clearly  noticed  this  obstacle.^^  In 
saying  that  liberty  covers  anything  which  does  no  injury 

as  the  Civil  Code  is  more  particularly  a  body  of  law  written  to  favor 
proprietors  than  to  favor  the  fever  of  business.  But  it  is  to  be  supposed 
that  there  is  a  minimum  of  action  which  cannot  be  dispensed  with. 
A  truly  static  condition  is  rather  a  conception  of  the  mind  than  a  real 
fact;  every  man  is  compelled  to  act.  Besides,  the  Code  lacks  philosophy. 
If  it  obeys  certain  conceptions,  it  is  without  quite  knowing  why,  as 
Monsieur  Jourdain  made  prose. 

16  See  in  this  sense  Ripert  and  Tesseire,  op.  cit.,  RDC  1904,  p.  727. 

1'  For  example,  in  case  of  responsibility  as  between  neighbors,  I  need 
not  anticipate  the  likelihood  of  inconveniences  exceeding  the  ordinary 
ones  of  neighborhood  life.  For  extraordinary  inconveniences  I  am  en- 
titled to  an  indemnity.  See  Capilant,  "Des  Obligations  de  Voisinage," 
RCL  1900,  p.  23G,  who  lays  down  the  principle  that  a  person  must  so 
use  his  own  as  not  to  injure  his  neighbor  unreasonably. 

i«  See  Bertauld,  "Liberté  Civile,"  p.  65;  Dupont-White,  "L'Industrie 
et  l'État,"  p.  312. 


524  RENÉ   DEMOGUE  [Ch.XVIII 

to  another's  right,  Bertauld  opens  wide  a  door  for  ques- 
tions.    What  is  the  limit  to  another's  right ?^^ 

To  sum  up,  Hberty  as  generally  applied  in  the  theory 
of  obligations  is  really  a  means,  subordinated  conse- 
quently to  the  object  sought,  which  is  a  social  ideal, 
either  of  present  interest  or  of  competition  under  equal 
conditions.  It  causes  serious  social  losses,  and  favors 
static  rather  than  dynamic  security. 

1»  See  also  Emmanuel  Levy,  "Responsabilité  et  Contrat,"  RCL  1899,  pp. 
361ff. 


,2881 


SOLÎDARÏSM  525 


CHAPTER  XIX 


SOLIDARISM  AND  THE  APPORTIONMENT  OF 

LOSSES 

THE  THEORETICAL  BASES  OF  SOLIDARISM  -  DIVISION 
OF  LOSSES  IN  PRIVATE  LAW,  ARISING  FROM  THE  NOTION 
OF  SOLIDARITY -ADDITIONAL  APPLICATIONS  IN  PRI- 
VATE LAW -DIVISION  OF  LOSSES  A  CONVENIENT  COM- 
PROMISE FOR  VARIOUS  ISSUES -THE  DEFECTS  OF  THE 
PRINCIPLE -THE  MINIMUM-OF-EXISTENCE  VERSION  OF 
SOLIDARISM . 

S  288  The  Theoretical  Bases  of  Solidarism.  A  very 
important  group  of  interests  which  may  claim  the  at- 
tention of  the  legislator  is  that  which  touches  the  ap- 
portionment of  losses,  with  which  is  also  connected  the 
idea  of  the  division  of  gains,  and  even  of  compensation 
for  misfortune.  Let  us  remain  on  the  ground  of  division 
of  losses,  where  we  can  study  more  particularly  what 
method  of  apportionment  termed  Solidarism. 

The  idea  of  the  dissemination  of  risks  is  no  given 
principle  of  the  human  mind,  like  security  ^^r  ex^mp^e 
but  is  the  result  of  a  practical  elementary  fact  that 
losses  are  easily  borne  and  become  unimportant  if  they 
are  apportioned  among  a  great  number  of  individuals. 
Here  we  have  the  basis  of  the  famous  theory  of  social 

insurance.  ^^.  «°  ^^^^ ^^^/^^^^J^le fal  EduLtion  in  1900.  quoted  in 
resolution  of  the  Congress  o^  ^^^^^^,^  Léon  Bourgeois,  "Essai  à' une 
UEichthal.  OP-  -^■-  Pi^;^^.  p  37."ho  accurately  speaks  of  an  organ- 
Sn  S'Ltil-?^^^^^^^^^^  and  risks  of  natural  solidarity.     See 

also  ibid.  p.  49. 


526  RENÉ   DEMOGUE  [Ch.XIX 

solidarity  ■ —  a  much  more  solid  basis  that  any  self- 
styled  quasi-contract  that  may  be  invoked. 

Léon  Bourgeois's  appeal  to  the  idea  of  quasi-contract^ 
is  in  sum  no  more  than  an  ingenious  formula  designed 
for  the  purpose  of  goading  the  instinct  of  imitation,  of 
logically  stretching  a  preexisting  institution.'  Its  prac- 
tical value  is  much  more  apparent  than  real.  To  put  it 
beyond  contest,  the  foundation  of  this  quasi-contract 
would  have  to  be  discovered  and  then  its  possible  extent 
fixed.  This  no  one  has  thought  of  doing,  the  notion 
of  quasi-contract  being  highly  obscure  even  in  the  law  of 
private  rights.  This  skillfully  launched  idea  is  then 
only  a  clever  and  seductive  formula  devised  to  attract 
men's  minds.  There  is  no  innovation  which  cannot 
boast  of  finding  some  germ  in  preexisting  institutions. 
Why,  however,  and  to  what  extent  this  one  should  be 
developed  is  yet  to  be  known. 

Bougie  sees  in  the  idea  of  quasi-contract  a  means  of 
"developing  and  perfecting  the  art  of  interpreting 
assents  wholly  unexpressed,  as  they  most  often  are."* 

But  though  this  seems  a  way  of  explaining  society  by 
something  very  close  to  the  social  contract,  is  it  not  in 
fact  simply  the  ingenious  recognition  of  a  necessity, 
that  is,  of  the  opposite  of  a  contract?  Is  it  not  simply 
a  justification  of  society,  and  not  of  a  special  kind  of 
society:  Solidarist  society?  From  the  point  of  view  of 
practice,  it  is  said,  in  urging  a  quasi-contract,*  Every 
person  owes  much  to  the  rest,  so  they  may  \'ery  fairly 

*  "Solidarité,"  p.  1.33;  to  the  same  effect,  Bougie,  "Solidarisme," 
pp.  65ff. 

'In  opposition  to  the  exactitude  of  this  formula  see  Charmont,  "La 
Renaissance  du  Droit  Naturel,"  p.  152  [§  66  ante  of  the  present  work]; 
Glasson,  BAS  1903,  vol.  ii,  p.  426.  Compare  Groppali,  "La  Concezione 
Solidaristica  del  Bourgeois  e  la  Teoria  del  Quasi-Contrato,"  Archivio 
Giuridico,  1907,  vol.  i,  p.  265. 

<  Op.  cit.  p.  75. 

^Bourgeois.  "Solidarité,"  p.  119;  Brunot.  op.  cit.,  BAS  1903,  pp.  330fiF. 


§288]  SOLIDARISAI  527 

take  a  little  from  him.  But  it  must  be  remarked  that 
this  system  grants  a  counterclaim  not  to  those  who  have 
given  but  to  others,  so  the  force  of  the  reasoning  fails. 
One  might  as  well  say  that  a  donee  ought  to  gi\'e  to 
others  because  of  what  he  has  received.^  \Miere  is  the 
solid  basis  for  this  affirmation?  Bourgeois,  in  his 
"Philosophy  of  Solidarity"  (on  page  48  and  following), 
declares  very  ingeniously  that  the  contract  is  collecti\e, — 
that,  as  it  is  impossible  to  reckon  up  each  indi^"idua^s 
social  debt,  the  practical  solution  is  to  extend  the  prin- 
ciple of  mutualization  to  all  risks,  which  amounts  to 
saying,  the  explanation  comes  to  nothing  exact,  so 
to  make  it  easier  let  us  fall  back  on  mutuality.  For 
those  who  seek  a  definite  foundation  for  solidarity,  this 
is  somewhat  of  a  deception.  Would  it  not  be  better 
simply  to  say:  \Miene\er  a  loss  is  suffered  either  by  a 
disaster  or  an  accident  or  even  by  a  foreseen  cause  like 
old  age,  the  burden  of  it  should  be  apportioned  among 
several  and  thus  lightened;  or  rather  (and  this  is  another 
formula  which  has  special  consequences  of  its  own),  every 
human  being  should  be  assured  a  certain  minimum  of 
existence.  There  will  thus  result  two  different  con- 
ceptions of  solidarity,  a  point  which  its  partisans  do  not 
seem  to  suspect. 

§  289.  Divisiofi  of  Losses  hi  Private  Law,  Arising 
from  the  Notion  of  Solidarity.  Let  us  de\ote  particular 
consideration  to  the  former  conception,  which  aims  at 
the  division  of  losses  or  expenses  among  se\eral  because 
it  is  a  means  of  lightening  them.  We  may  note  at  the 
outset  that  Solidarism,  if  it  tends  to  equality,  attains 
it  by  being  at  bottom  only  a  certain  pooling  of  losses 
sustained.^     And   this  idea   will   make  it  easier  for  us 

«See  D'Eichthal.  BAS  1903,  vol.  i,  p.  165. 

^  See    Deuve.    "Le    Solidarisnie    et    ses   Applications    Economiques," 
thesis,  Paris  1906,  pp.  142ff.,  147flf. 


528  RENÉ   DEMOGUE  [Ch.XIX 

to  understand  the  practical  consequences  to  which 
Solidarism  leads,  and  which  may  be  glanced  over.  This 
theory  is  the  germ  of  the  doctrine  which  exalts  the  State 
[Étatisme],  for  it  is  certain  that  an  expense  which  may 
benefit  a  great  number  of  persons  will  be  easily  supported 
if  everybody  pays  a  small  share  by  means  of  a  tax  which 
the  State  would  apply  to  that  particular  purpose.  The 
advantage  resulting  from  a  new  road,  a  new  railway, 
a  new  State  institution,  would  be  almost  gratuitous  for 
everybody  if  he  were  merely  required  to  pay  a  few 
centimes  more  in  taxes. 

This  idea  of  solidarity  is  also  at  the  base  of  all  in- 
surance, either  mutual  or  at  fixed  premiums;  insurance 
even  at  fixed  premiums  simply  spreads  losses  suffered 
by  single  individuals  over  the  thousands  of  insured.  It 
is  scarcely  necessary  to  add  that  it  is  also  the  reason 
for  all  mutual  organizations. 

It  has  even  been  thought  the  explanation  of  tariff 
unions  and  of  the  cooperative  movement.^ 

More  narrowly  understood,  this  conception  is  also  at 
the  root  of  many  of  the  compromises  scattered  through 
the  laws:  for  instance,  the  participation  of  the  State 
and  its  administrative  authorities  in  public  works  and 
in  such  expenses  as  old  age  and  sickness  pensions;  or 
the  system  of  public  aid  to  many  private  organizations  ; 
or  that  of  assessments  on  shares  of  stock,  or  that  of 
joint-stock  companies  which  scatter  the  capital  of  the 
firm  among  thousands,  distributing  it  in  such  a  manner 
as  to  render  them  scarcely  sensible  of  the  risks  of  loss, 
and  likewise  of  the  chances  of  gain. 

In  private  law  we  find  other  applications  of  solidarity 
as  a  pooling  of  losses,  and  not  alone  in  those  vast  in- 
stitutions dear  to  sociologists  which  are  capable  of 
including    the  whole   world.     We  observe   it   in  small 

^  CoTapare  Bougie,  "Solidarisme,"  pp.  99,  136ff. 


§289]  SOLIDARISM  529 

groups  which  are  brought  together  either  by  the  un- 
certainty of  life,  or  through  contract,  in  the  limited 
and  temporary  state  of  a  small  rudimentary  society 
within  which  solidarity  reigns.^  If  such  a  group  holds 
together  for  a  certain  time  it  will  acquire  greater  cohesion, 
that  is,  more  zeal  for  the  community,  and  it  will  facilitate 
the  struggle  against  the  outside  world.  Company 
officials,  if  they  have  to  bear  their  part  of  the  collective 
responsibility  for  a  fault,  will  be  the  more  diligent  in 
avoiding  it.^"  In  these  limited  groups,  created  often 
by  contract,  or  by  the  danger  of  accident,  solidarity 
does  away  with  the  disconcerting  and  unjust  element 
of  risk,  or  rather  diminishes  it.  With  the  aid  of  soli- 
darity it  is  possible  to  attack  that  hard  rule,  "res  perit 
domino,"  which  has  such  serious  consequences  in  pri- 
vate law.^^  The  injury  is  rendered  less  burdensome 
by  distributing  it. 

§  290.  Additional  Applications  in  Private  Law.  We 
may  further  consider  the  applications  made  of  the 
idea  of  solidarity  in  positive  law.  Among  these,  we 
may  cite  the  participation  of  both  interested  parties 
in  the  consequences  of  work-accidents,  under  the  Law 
of  April  9,  1898,  now  extended  to  trade,  and  doubtless 
to  be  extended  to  agriculture.  In  French  law,  this  is  not 
quite  accurately  termed  the  theory  of  occupational  risk,^^ 
since  employer  and  workman  each  bear  a  part  of  the  loss, 
the  workman  injured  receiving  only  half  or  two-thirds 

^Brunoi,  loc.  cit.  p.  354,  does  not  appear  to  have  thought  of  this 
application. 

1"  See  De  Tourtoulon,  loc.  cit.  p.  162. 

n  See  Mataja,  "Das  Recht  des  Schadenersatz  nach  dem  Standpunkt 
der  Nationalokonomie,"  pp.  19,  25,  27.  He  begins  with  the  idea  of 
solidarity  among  men,  as  he  says  himself,  p.  131. 

12  See  Deiive,  op.  cit.,  pp.  126ff.  On  the  modern  tendency  to  extend 
this  sharing  of  liability,  compare  the  interesting  article  of  Dereux,  "Du 
Dommage  éprouvé  au  service  d'autrui,"  p.  69;  Gény,  "Risque  et  Respon- 
sabilité," RDC  1902,  p.  818;  Tesseire,  "Le  Fondement  de  la  Respon- 
sabilité," pp.  163fî. 


530  RENÉ   DEMOGUE  [Ch.XIX 

wages  according  to  the  case.  We  may  also  cite  the 
sharing,  by  operator  and  miner,  of  the  cost  of  miners' 
retiring  pensions,  Law  of  June  29,  1898,  article  2,  with 
an  increase  furnished  by  the  State,  and  the  more  recent 
system  for  retiring  pensions  for  workmen  in  general 
established  by  the  Law  of  April  6,  1910,  involving  the 
participation  of  workman,  employer,  and  the  State. 
In  other  countries  the  same  theory  is  applied  to  pro- 
vision for  losses  by  sickness  and  unemployment. 

Narrowing  our  circle,  we  find  the  same  basic  idea  in 
article  1150  of  the  Civil  Code,  which  only  requires  pay- 
ment of  damages  foreseen  or  which  might  have  been  fore- 
seen at  the  time  of  the  contract  when  its  non-performance 
is  due  to  mere  fault.  Anyone  may  easily  be  at  fault,  so 
the  liability  is  divided  in  order  not  to  exaggerate  the  loss. 

While  article  1150  is  perhaps  its  clearest  application, 
this  idea  of  the  division  of  losses  impregnates  none  the 
less  a  great  part  of  the  laws,  just  as  it  penetrates  the 
practical  life  of  business  and  the  courts.  There  fre- 
quently appears  in  the  law  the  underlying  idea  of  a 
limitation  of  liability  as  a  means  to  a  sharing  of  liability. 
Thus  a  person  is  in  general  liable  for  damages  only  after 
notice  (article  1146,  Civil  Code);  after  the  injury,  if 
the  contract  of  sale  has  not  been  rescinded,  the  injured 
party  loses  only  a  tenth  of  the  value  of  the  real  estate 
(article  1681)  ;  the  claimant  need  reimburse  the  person 
in  possession  only  for  the  increase  in  value  resulting 
from  useful  expenditures  on  the  property;  solvent 
debtors,  where  the  debtors  are  jointly  and  severally 
liable,  divide  the  part  of  those  who  are  insolvent.  Where 
an  heir  pays  a  mortgage  debt  of  the  estate,  and  one  of 
the  co-heirs  is  insolvent,  his  share  of  the  debt  must  be 
paid  by  all  the  heirs  in  proportion  to  their  share  of 
the  estate  (article  876,  Civil  Code).  Where  one  heir 
sues  the  others  on  their  guaranty,  the  share  of  an  insol- 


§290]  SOLIDARISM  531 

vent  heir  is  divided  among  all  who  are  solvent,  including 
the  plaintiff  (article  855,  Civil  Code).  The  legislator, 
interested  in  an  equal  division,  has  come  to  sanction 
in  this  manner  these  two  Solidarist  solutions. 

These  compromise  measures  have  an  even  greater 
importance  in  the  practice  of  the  courts.  Judges  rarely 
allow  full  satisfaction  to  one  party,  and  readily  admit 
common  fault  in  accident  cases,  or  some  other  solution, 
so  that  they  can  put  the  burden  of  the  loss  on  several 
persons.  ^^ 

This  disposition  corresponds  to  a  tendency  in  business 
to  diffuse  liability.  Thus,  corporations  are  created  to 
take  over  a  business  and  so  diminish  the  chance  of  loss 
to  each  stockholder,  associations  come  into  being  to 
lessen  the  cost  of  this  or  that  installation  or  new  activity 
to  each  member  —  as  for  instance  the  site  for  games 
or  a  shooting  ground.  Compromises  are  agreed  to  not 
only  to  avoid  suits  —  economy  of  effort  —  but  also  to 
lighten  the  loss  which  each  party  tried  at  first  to  put 
wholly  on  the  other. 

These  various  kinds  of  cooperation  to  lessen  expense 
and  loss  tend  nowadays  to  a  very  wide  development, 
although  the  highly  individualistic  French  Civil  Code  has 
remained  a  stranger  to  them.  There  is  accordingly  a 
theory  of  the  just  mean  between  exclusive  and  opposite 
liabilities  which  is  to-day  attracting  more  and  more 
attention,  it  being  admitted  that  the  idea  of  justice 
(which  is,  as  we  have  seen,  susceptible  of  various  mean- 
ings) is  insufficient  to  yield  the  solution  of  the  problems 
before  us,  and  it  appearing  also  that  there  is  a  steadily 
increasing  desire  to  provide  everyone  with  a  minimum 
of  existence. 

The  old  law  and  the  Civil  Code  itself,  except  for  a 
few  theories  like  that  of  expense  for  necessary  repairs, 

"  See  for  very  exact  observations  on  this  point,  Dereux,  op.  cit.  p.  80. 


532  RENÉ   DEMOGUE  [Ch.XIX 

or  buildings  on  another's  land,  did  not  have  this  point 
of  view  ;  a  traditional  logical  spirit  inherited  from  Roman 
law  made  them  pay  little  attention  to  it,  or  rather  de- 
layed its  appearance.  It  could  only  develop  after  a 
more  realistic  theory  had  penetrated  all  orders  of  human 
knowledge. 

Division  of  losses,  like  the  solidarity  of  which  it  is  a 
part,  has  a  certain,  though  more  limited  value.  It  is, 
of  course,  not  borrowed  directly  from  the  confused 
variety  of  forms  which  nature  presents,^^  but  it  responds 
to  reality  ^^  and  to  certain  aspirations  of  the  human  soul. 
It  mingles  the  real  and  the  ideal. ^"^  It  gives  the  a  priori 
its  share,  but  limits  it  happily. 

§  291.  Division  of  Losses  a  Convenient  Compromise 
for  Various  Issues.  How  may  the  division  of  losses  be 
reconciled  with  the  other  interests  which  preoccupy 
the  legislator? 

A  sort  of  legerdemain  suggested  by  practical  ex- 
perience, and  drawn  from  the  pyschological  consideration 
that  to  the  mind's  eye  big  things  look  bigger  and  little 
things  smaller  than  they  really  are,  solidarity,  that  skillful 
system  of  plucking  a  good  many  fowls  without  making 
them  cry  out,  is  evidently  destined  to  a  great  success. 

It  is  doubtless  not  wholly  in  accord  with  the  great 
theoretical  tendencies  of  legal  life,  justice,  and  static 
and  dynamic  security;  but  as  a  compromise  it  has  the 
advantage  of  not  colliding  too  directly  with  them. 
And  in  that  universal  approximation  which  is  the  science 
of  life,  in  view  of  the  consideration  that  facts  have  the  bad 
taste  not  to  respond  exactly  to  theory,  this  advantage  may 
be  a  reason  for  developing  the  doctrine  of  solidarity. 

i<  Bougie,  op.  cit.,  p.  39.     Compare  Br unot,  BAS  1903,  vol.  ii,  p.  315. 

'5  It  is  useless  to  rehearse  here  the  element  of  reality  in  social  solidarity. 
This  point  is  admitted  even  by  the  anti-Solidarists.  See  D'Eichthal, 
BAS  1903,  p.  170;  in  the  same  Juglar,  BAS  1903,  vol.  ii,  p.  417. 

^^  Bougie,  op.  cit.  p.  53. 


§291]  SOLIDARISM  533 

At  the  same  time,  just  because  this  theory  is  often  a 
compromise  between  others,  it  assures  a  certain  measure 
of  support  to  each  of  them.  Workmen's  compensation 
gives  a  new  security  to  the  workman,  and  it  is  the  same 
with  all  kinds  of  insurance  for  all  who  run  risks.  Thus 
the  limited  liability  of  the  stockholder  is  an  inducement 
to  invest  capital,  and  so  favors  the  idea  of  dynamic 
security  to  a  certain  extent. 

It  must  even  be  admitted  that  sometimes  it  is  a  cause 
of  economy  of  effort;  applied  to  accidents,  to  work- 
accidents  for  example,  it  avoids  all  delicate  weighing 
of  responsibility.  Would  it  not  be  much  simpler  if  it 
were  introduced  into  the  theory  of  the  liability  of  the 
lessee  in  case  of  fires,  by  dividing  the  loss  to  be  supported  ? 
This  would  not,  however,  always  be  accurate,  and  the 
advantage  should  not  be  exaggerated.  The  division 
of  loss  would  sometimes  be  more  complicated  than  the 
application  of  the  brutal  "res  perit  domino,"  as,  for 
example,  if  a  loss  were  divided  in  proportion  to  the  gravity 
of  each  person's  fault,  as  would  happen  where  all  were 
at  fault. 

§  292.  The  Defects  of  the  Principle.  As  the  value  of 
this  finely  drawn  theory  is  especially  based  on  the  pyscho- 
logical  consideration  which  we  have  indicated,  it  has 
certain  limits.  It  is  in  reality  only  a  skillful  trick, 
especially  seductive  to  politicians  whose  great  secret 
is  to  know  how  to  get  things  done.  When  these  partici- 
pations in  losses  become  too  numerous,  they  will  weigh 
heavily.  The  burden  of  contemporary  State  theories 
is  to-day  being  thought  annoying,  because  the  losses 
put  upon  the  community  ^"^  are  becoming  so  very  numer- 

"  This  is  particularly  frequent  in  modern  régimes,  where  the  neces- 
sity of  the  Government's  having  with  it  a  majority  naturally  by  no 
means  stable,  leads  it  to  satisfy  the  public  by  means  of  expenditures 
from  the  treasury,  certain  persons  saying  to  themselves  that  the  loss  , 
sustained  by  the  general  body  of  citizens  would  be  insignificant. 


534  RENÉ   DEMOGUE  [Ch.XIX 

ous  that  everybody's  share  is  large.  So  it  is  with  the 
many  forms  of  insurance  of  habiUty  which  the  new 
legislation  has  imposed  or  is  about  to  impose;  they 
will  bring  with  them  a  heavy  burden  of  premiums. 

Pushed  to  an  extreme,  this  theory,  then,  comes  into 
opposition  with  the  very  ideas  with  which,  at  first,  it 
did  not  collide.  People  find  themselves  so  burdened 
with  liability  for  \arious  forms  of  loss  that  business 
enterprise  is  checked.  The  capitalist  will  feel  himself 
menaced  by  the  extensive  though  partial  liability  which 
is  put  upon  him;  the  business  man  will  see  his  general 
expense  go  up.^^ 

Will  the  final  result  be  an  increase  or  a  slowing  down 
of  activity?  It  will  be  rather  a  slowing  down.  "L'État- 
isme"^^  has  many  advantages,  but  the  economists  have 
sufficiently  showed  its  disadvantages  —  the  fairly  regular 
but  drowsy  and  rigid  operation  which  results  in  all 
institutions. 

Division  of  liability  also  produces  a  degree  of  in- 
difference to  injury,  which  increases  with  the  increase 
in  the  number  of  persons  participating  in  the  loss.  How 
many  insured  realize  that,  in  not  taking  proper  pre- 
caution against  fire,  they  are  contributing  to  an  increase 
in  premiums?  How  many  individuals  feel  that  in  in- 
juring the  State  by  making  it  pay  damages  in  improper 
cases,  they  are  really  injuring  themselves  as  citizens? 

Must  we  not  even  go  farther  and  call  attention  to  the 
point  that  divided  liabilities,  especially  if  diluted  by 
insurance,  actually  favor  disaster?  Have  not  the  insured 
themselves  been  known  to  set  fires  in  order  to  receive 
a  sum  of  money  of  greater  value  to  them  than  the  build- 
ing?    The  Law  of  April  9,  1898  on  workmen's  compen- 

^*  See  the  observations  of  Frédéric  Passy  and  Levasseur,  BAS  1903, 
vol.  ii,  pp.  364  and  370. 

^*  [I.e.,  the  doctrine  which  would  exalt  the  State;  Interventionism. — 
Transl.] 


§292]  SOLIDARISM  535 

sation  foresaw  intentional  self -in  juries.  Much  heralded 
cases  have  revealed  fraud  in  connection  with  accidents, 
and  have  also  attracted  attention  to  the  great  increase 
in  small  accidentSj^"  against  which  the  courts  have  felt 
it  necessary  to  take  action. ^^ 

In  the  third  place,  it  must  be  noted  that  every  division 
of  liability,  of  future  losses,  frequently  requires,  directly 
or  indirectly,  the  regulation  of  complicated  interests. 
Every  community  of  interests  implies  difficult  rules, 
and  then  a  part  of  the  nation's  activity  will  be  spent  in 
working  out  this  division  of  losses  or  of  expenses,  and  so 
a  social  ideal  of  activity,  of  great  production  to  assure 
greater  enjoyment  to  all,  will  not  be  realized.  How 
much  activity  is  absorbed  by  that  method  of  accomplish- 
ing a  community  of  loss  which  is  called  insurance;  how 
much  more  by  regulation  of  general  average! 

Finally,  division  of  liability  brings  about  in  many 
cases  the  immobility  of  social  classes.  It  renders  it  a 
matter  of  indifference  who  can  become  an  employer, 
because  of  the  heavy  burdens  laid  on  members  of  that 
class.  It  immobilizes  acquired  situations:  the  workman 
is  more  certain  to  remain  a  workman.  That  right  to 
gain  anything  which  satisfied  the  old  Liberal  bourgeois 
becomes  a  vain  word.  A  ditch  is  being  dug  between 
classes,  and  in  consequence  each  side  is  preparing  for 
the  struggle  which  is  thus  rendered  inevitable,  since 
social  rearrangement  through  the  renewal  or  the  develop- 
ment of  the  ruling  classes  seems  to  be  as  essential  as 
the  renewal  of  plants  under  cultivation.  Without  it 
will  come  a  lowering  of  intelligence  and  of  activity 
among  the  sons  of  sated  capitalists. 

§  293.  The  Minimum-of-Existence  Version  of  Solid- 
arism.     We  have  observed  that  solidarity  may  be  con- 

*"  Pierre  Hans,  article  on  work-accidents  in  Réforme  Sociale,  April 
1910. 

"  See  RDC  1910,  p.  178;  Sirey  1910.2.117. 


536  RENÉ   DEMOGUE  [Ch.XIX 

ceived,  perhaps  usually  is  conceived,  in  another  way. 
Instead  of  basing  it  on  the  mislead ingly  precise  appearing 
theory  of  quasi-contract,  which  will  cause  many  decep- 
tions, it  may  simply  be  said  that  every  man  should 
nearly  always  be  entitled  to  a  minimum  of  existence. 2- 
Except  the  delinquents  and  the  lazy,  every  individual 
should  be  sure  of  getting  certain  advantages  from  society, 
and  to  assure  this  mutualization  is  possible  up  to,  but 
not  beyond,  a  certain  point.  Tims  there  will  be  sub- 
stituted for  the  theoretical  right  of  every  man  to  attain 
the  highest  dignities,  the  highest  fortunes,  the  practical 
right  which  can  always  be  realized  not  to  die  of  hunger. 
Such  a  thing  may  be  reconciled  with  the  duty  of  activity, 
and  consequently  with  that  need  of  goading  it,  which 
marks  the  western  world. ^^  It  may  at  least  be  hoped 
that  the  future  will  not  thus  be  sacrificed  to  the  present 
nor  economic  development  to  the  sweets  of  security. 
There  is  a  reconciliation  which  must  be  sought,  but  we 
must  not  imagine  that  we  have  discovered  a  new  world-"* 
by  establishing  certain  new  equalities,  without  destroy- 
ing inequality  so  far  as  it  has  a  value  of  its  own. 

To  this  conception  not  solely  such  measures  would 
attach  themselves  as  the  partial  liability  of  the  employer 
in  case  of  work-accidents,  or  even  the  right  to  a  retiring 
pension  assured  by  payments  of  both  employer  and  work- 
man, but  also  such  very  precise  measures  as  the  free- 
dom from  creditor's  process  of  alimentary  pensions  (article 
581,  Code  of  Procedure),  of  workmen's  compensation 
allowances  (Law  of  April  9,  1898,  article  3),  and  of  wages 
up  to  seven-tenths   (Law  of  Jan.  12,  1895);  the  non- 

"  See  in  this  sense  Tarde,  BAS  1903,  vol.  ii,  p.  421;  Groppali,  op.  cit., 
Archivio  Gmridico,  p.  271,  thus  understands  the  Solidarism  oi Bourgeois. 

23  We  believe  that  the  authority  of  Tarde  maj'  be  invoked  to  support 
this  proposition. 

2*  See,  however,  Andler,  "Le  Quasi-Contrat  Social  et  M.  Bourgeois," 
RMM  1897.  p.  520. 


§293]  SOLIDARISM  537 

assignability  of  wages  and  of  allowances  due  on  account 
of  work-accidents;  the  privilege  of  half-pay  accorded 
by  the  Law  of  1898  to  workmen  in  case  of  temporary 
disability,  the  privilege  of  servants  (article  2101,  Civil 
Code),  and  the  right  of  all  workmen  and  employees 
to  a  priority  in  cases  of  the  employer's  bankruptcy 
(article  559,  Commercial  Code).  In  a  general  way, 
this  application  of  the  idea  of  a  minimum  of  existence 
will  embrace  all  measures  which  assure  to  the  workman 
the  payment  of  a  sum  essential  for  his  livelihood,  and 
those  which  make  of  him  a  sort  of  half  minor,  not  com- 
pletely free  in  the  disposition  of  what  he  owns,  or  even 
of  his  labor  (as  occurs  as  the  result  of  laws  regulating 
hours  of  labor,  or  providing  for  one  day's  rest  in  seven). 
The  conception  of  an  assured  minimum  of  existence 
is,  in  a  word,  only  a  particular  aspect  of  what  Charmont 
calls  the  socialization  of  law^^ — ■  that  conception  of  law 
which  makes  it  more  comprehensive,  in  the  sense  that 
it  takes  into  consideration  not  alone  man  whose  rights 
must  be  respected,  but  men,  in  different  social  situations, 
the  rich  and  the  poor,  especially  the  poor.  So  conceived, 
law  is  no  longer  that  large  structure  resembling  the 
classic  theatre  in  which  appeared  only  general  abstrac- 
tions, the  miser,  the  liar;  it  becomes  more  like  Balzac's 
Human  Comedy,  which  shows  men  in  infinitely  varied 
situations.  Socialized  law  recognizes  this  difference  in 
order  to  give  to  each  what  is  suitable  to  him  accord- 
ing to  his  fortune  or  profession.  In  this  form,  which, 
responding  to  a  powerful  necessity,  transforms  the 
abstractions  of  the  Declaration  of  the  Rights  of  Man 
into  concrete  things — the  rights  of  men,  social  solidarity 
is  fully  acceptable. 

"  See  "Le  Droit  et  l'Idée  Démocratique,"  the  chapter  on  the  social- 
ization of  law. 


538  RENÉ   DEMOGUE  [Ch.XX 


CHAPTER  XX 
THE    NOTION     OF    GENERAL     INTEREST 

EXTENT  OF  THE  GENERAL  INTEREST  —  RARITY  OF 
IDEAS  COMMON  TO  ALL  —  INTERESTS  OF  GROUPS;  THEIR 
SOLIDARITY  AND  THEIR  OPPOSITION  —  THE  GENERAL 
INTEREST  A  ZONE  OF  UNCERTAINTY  — THE  DIFFICULTY 
OF  MEASURING  THE  GENERALITY  OF  AN  INTEREST  — 
THE  ILLUSORINESS  OF  THE  NOTION  OF  GENERAL  IN- 
TEREST. 

§  294.  Extent  of  the  General  Interest.  There  are  few 
ideas  about  which  lawyers,  sociologists,  and  economists 
have  talked  so  much,  as  about  general,  as  opposed  to 
particular  interest,  quite  apart  from  the  nature  of  these 
interests  —  of  security,  of  liberty,  of  convenience,  or 
any  other.  Here  interests  whether  termed  general  or 
particular  are  dealt  with  in  a  different  aspect  from  that 
considered  up  to  this  point  ;  they  are  thought  of  from 
the  point  of  view  of  extent,  and  not  from  that  of 
their  object  or  nature.  Adopting  this  new  point  of 
view,  let  us  analyze  the  sacrosanct  principle  that  the 
general  interest  should  always  prevail  over  that  of 
individuals. 

Is  there  such  a  thing  as  an  interest  which  is  "general" 
by  nature,  and  thus  different  from  particular  interests? 
The  only  answer  which  has  been  made  to  this  question  — 
and  it  is  an  answer  which  is  merely  approximative,  as 
we  shall  see  —  is  that  idea,  so  often  proclaimed,  that  the 
general  interest  is  but  the  sum  of  individual  interests. 
If  this  idea  be  carefully  analyzed  it  will  be  found  much 


§294]  GENERAL   INTEREST  539 

more  complex  than  would  be  expected;  the  convenient 
explanation  so  often  misused  will  quickly  fade  away. 

The  general  interest  is  not  merely  that  of  living,  but 
that  of  future  generations  as  well.  Those  owners  of 
elegant  edifices  dating  from  the  1400s  and  1500s,  who,  a 
century  or  two  after  their  construction,  destroyed  them 
to  make  place  for  pompous  neo-classic  monuments, 
committed  acts  contrary  to  the  general  interest,  for  they 
deprived  our  eyes  of  the  delight  of  buildings  charming 
by  reason  of  their  ingenuity  and  variety.  But  who 
in  their  times  thought  of  reproaching  them  for  the  de- 
struction of  these  "barbaric  monuments?"  To  act 
contrary  to  the  general  interest,  therefore,  is  sometimes 
to  act  contrary  to  the  interest  of  future  generations. 
The  general  interest  is  not  merely  that  of  living  men, 
but  also  that  of  those  who  are  to  live.  A  similar  short- 
sightedness explains  the  weakness  of  certain  ancient 
democracies.  It  can  be  understood  that  the  people 
became  at  last  disgusted  with  the  imbeciles,  the  insanely 
proud,  the  egoists  who  had  often  served  as  their  mon- 
archs  or  aristocracy;  but  it  does  not  follow  that  the 
people's  short  sight,  its  ignorance,  which  made  its  own 
government  live  from  day  to  day  without  largeness  of 
thought,  were  necessarily  the  last  word  of  wisdom,  and 
faithfully  represented  the  sum  of  present  and  future 
interests.  How  hard  it  is  to  foresee  the  thoughts  of  the 
future,  its  ideal,  its  interest!  We  perceive  the  mistakes 
of  the  past.     Will  the  future  not  uncover  ours? 

Even  if  we  disregard  the  true  view  of  the  general 
interest  as  including  that  of  future  generations,  as 
recognizing  our  solidarity  with  the  future,  and  narrow 
our  study  for  convenience  to  the  present  and  nearby 
periods,  we  find  the  idea  highly  complex. 

§  295.  Rarity  of  Ideas  Common  to  All.  General 
interests,  in  the  sense  of  being  common  to  all,  are  ex- 


540  RENÉ   DEMOGUE  [Ch.XX 

tremely  rare,  whether  we  consider  them  subjectively 
as  ideal  sentiments,  or  as  objective  interests.  This  is 
particularly  true  of  our  existing  societies.  If  in  small 
primitive  communities  the  uniformity  of  social  relations 
and  of  culture  may  be  sufficiently  complete  to  open  the 
way  to  the  formation  of  a  common  conscience,  the  more 
the  collective  being  becomes  larger  and  more  compli- 
cated, just  so  much  more  do  its  interests  divide,  and  do 
political  and  religious  parties  also  come  into  being,  and 
form  obstacles  to  that  agreement  which  is  the  foundation 
of  a  uniform  public  opinion.^ 

There  are  some  ideas,  or  rather  opinions,  which  are 
common  to  a  very  great  number  of  persons.  Almost 
every  one  has  an  opinion  in  regard  to  the  death  penalty, 
there  are  many  who  hold  an  opinion  with  respect  to  the 
chief  political  parties  and  rejoice  in  their  success  or  down- 
fall. Is  it  necessary  to  add  that  on  almost  all  such  matters 
opinion  is  divided,  so  that  the  general  interest  becomes 
that  of  a  majority  —  the  interest,  or  what  is  believed 
to  be  the  interest,  of  one  group  opposed  to  another  less 
numerous? 

This  observation  discloses  the  character  of  modern 
politics.  Compelled  by  its  very  nature  to  court  public 
opinion,  it  is  impelled,  in  modern  States,  to  take  up  the 
only  questions  which  the  general  public  is  able  to  under- 
stand, and  which  are  often  the  least  worth  while,  being 
frequently  personal  questions  which  are  the  easiest  to 
comprehend  .2  Positive  material  or  economic  interests 
are  thus  sacrificed  to  ideas,  to  academic  discussions, 
to  so-called  questions  of  principle,  unless  the  Govern- 
ment, as  guardian  of  the  interests  of  living  and  of  future 
generations,  is  energetic  enough  to  force  the  representa- 

1  See  Tanon,  "L'Évolution  du  Droit  et  la  Conscience  Sociale,"  p.  34. 

2  So  it  comes  about  that  in  some  foreign  countries,  political  parties  are 
wholly  personal. 


§295]  GENERAL   INTEREST  541 

tives  of  the  public  to  face  high  thoughts  and  vast  enter- 
prises. 

§  296.  Interests  of  Groups;  Their  Solidarity  and  Their 
Opposition.  Let  us  now  take  up  interests  properly 
so-called,  putting  aside  the  ideals,  often  low,  only  oc- 
casionally elevated,  which  are  common  to  important 
groups.  Interests,  much  more  than  ideas,  are  peculiar 
to  certain  groups.  The  interest  of  producers  is  not  that 
of  consumers,  and  that  of  employers  is  not  that  of  work- 
men. Nevertheless,  the  development  of  a  mercantile 
business  (sellers  and  buyers),  or  of  a  factory  (workmen 
and  employers),  is  connected  by  a  bond  of  solidarity  to 
that  of  neighboring  enterprises;  and  this  bond  extends 
from  neighbor  to  neighbor  even  to  those  farthest  distant, 
with  constantly  diminishing  force  like  the  progress  of  a 
sound  wave.  In  any  event  an  interest  may  be  stretched 
so  far  that  the  defeated  contesting  interest  will  inflict  a 
certain  loss  upon  it  in  consequence  of  its  defeat;  for 
example,  a  workman  desirous  of  getting  an  increase  in 
wages  which  will  lessen  his  employer's  profits  cannot 
carry  his  demands  so  far  as  to  see  the  shop  closed  and 
himself  thrown  out  of  work. 

The  interests  of  different  groups  are  thus  at  once 
solidary  and  opposite,^  but  the  solidarity  is  ordinarily 
not  felt  until  the  struggle  of  interests  has  reached  a 
point  at  which  it  threatens  or  has  accomplished  the  com- 
plete ruin  of  one  of  them.  Community  of  interest  sub- 
sists nevertheless.  The  ruin  of  an  employer  harms  his 
employees,  although  his  misfortune  may  be  in  part  caused 
by  the  low  wages  he  paid  (as  it  may  also  result  from  his 
bad  handling  of  his  purchasing  or  selling  department). 

§  297.  The  General  Interest  a  Zone  of  Uncertainty. 
The  solution  answering  to  the  general  interest  therefore 

«  See  on  this  combination  of  struggle  and  cooperation,  Tanon,  "L'Évo- 
lution de  Droit,"  pp.  103ff. 


542  RENÉ   DEMOGUE  [Ch.XX 

often  appears  not  so  much  a  rigorous  and  precise  solution 
as  a  certain  zone  within  which  a  contest  may  well  con- 
tinue between  hostile  parties  over  certain  propositions. 
Nevertheless  it  is  important  to  mark  off  this  zone  and 
to  keep  within  it,  for  by  going  too  far  or  by  falling 
short  of  its  limits  there  will  be  a  sacrifice  of  at  least  one 
of  the  opposing  interests,  which  should  coexist  according 
to  the  general  conception  of  the  rôle  of  humanity,  which 
must  never  be  forgotten. 

Thus,  whether  an  owner  is  to  be  liable  for  the  actual 
state  of  things  belonging  to  him,  or  is  to  be  liable  only 
in  case  of  fault,  may  be  decided  either  way  without  harm  to 
the  general  interest,  unless  one  or  the  other  solution  bear 
so  hard  on  one  group  as  to  destroy  wholly  its  activity. 

Izoulet  exaggerates  when  he  says,  trying  to  iden- 
tify the  general  interest  with  that  of  individuals,  that  if 
individuals  become  less  the  State  cannot  become  greater. 
"Everything  which  increases  the  value  of  the  individuals 
who  make  up  a  society,"  says  he,  "increases  the  value 
of  that  society,  and  the  converse  is  also  true."*  This 
is  only  approximately  correct.  The  modern  State  is  so 
complicated  a  machine  that  there  are  losses  in  the  trans- 
missions and  the  same  interests  are  solidary  and  adverse 
at  the  same  time. 

Without  doubt  one  may  regard  "one  for  all  and  all  for 
one"  an  ideal  formula;  it  may  be  that  individual  per- 
fection is  possible  only  through  social  justice.^  But  these 
are  only  ideas  of  action,  pedagogical  formulas  which 
may  incite  to  imitation;  they  are  not  precise  rules. 
Useful  for  the  public,  they  are  too  gross  for  the  laboratory, 
so  that  while  we  do  not  neglect  them,  we  do  not  assign 
to  them  an  absolute  value. 

«  "La  Cité  Moderne,"  p.  416.  To  the  contrary,  Penjon,  "L'Énigme 
Sociale"  (Travaux  de  l'Université  de  Lille),  pp.  95ff.,  who  shows  that 
balanced  egoisms  and  altruism  are  different  things. 

6  Izoulet,  op.  cit.  pp.  436,  448. 


§298]  GENERAL   INTEREST  543 

§  298.  The  Difficulty  of  Measuring  the  Generality  of  an 
Interest.  Interests  termed  general  often  have  a  special 
character,  in  that  they  are  interests  of  a  group.  But 
no  one  member  of  the  group  is  individually  much  affected. 
For  him,  it  is  often  more  a  convenience  than  an  interest. 
Public  improvements,  for  instance,  for  which  is  made  a 
wide  use  of  the  right  of  condemnation,  are  put  through 
in  the  interest  of  persons  whose  individual  gain  is  small. 
A  new  tunnel,  a  new  railway,  will  shorten  my  journey 
to  such  or  such  a  point,  often  an  advantage  very  unim- 
portant to  me.  It  is  only  the  sum  of  these  slight  in- 
terests which  can  prevail  o\^er  a  property  right.  Is  it 
not,  then,  to  be  feared  that  abuses  will  creep  in,  that  the 
most  sacred  rights  will  be  set  aside  to  save  a  little  an- 
noyance to  a  few  individuals? 

If,  consequently,  some  interests  exist  which  are  to  be 
preferred  to  others  because  they  are  general,  or  more 
correctly,  collective,  it  is  not  always  easy  to  determine 
which  are  preferable  to  others  because  they  have  a  true 
character  of  generality.  Each  one  of  these  interests, 
by  reason  of  the  solidarity  which  unites  mankind  and 
the  legitimate  hopes  that  the  interest  arouses,  is  col- 
lective up  to  a  certain  point.  But  this  character  of 
generality  may  be  measured  at  once  in  extent  (by  cal- 
culating approximately  the  number  of  persons  interested 
in  a  reform),  and  with  regard  to  its  importance  for  each 
one  of  the  members  of  the  collectivity,  both  present  and 
future.  In  every  interest  there  are  two  equally  import- 
ant things:  its  extent  and  its  depth.  The  latter  is  not 
always  the  same  with  everyone  affected;  for  the  ruin 
of  the  head  of  a  family,  which  seriously  injures  his  children 
and  may  affect  very  greatly  his  employees,  will  only 
slightly  harm  his  butcher  and  baker.  The  extent  of 
the  interest  may  also  include  the  future  or  be  limited 
to  the  present  solely.     It  iS  only  after  these  difficult 


544  RENÉ   DEMOGUE  [Ch.XX 

calculations  and  measurements  have  been  made  that  it 
may  fairly  be  said  that  such  and  such  an  interest  is 
preferable  to  such  and  such  another  one. 

From  these  circumstances  it  results  that  such  expres- 
sions as  general  interest,  private  interest,  social  interest, 
and  interest  of  the  indi^'idual  (or  even  social-individual- 
istic expressions  which  imply  some  kind  of  transposition 
of  these)  are  vague  and  of  little  value.  A  private  in- 
terest "in  abstracto"  is  a  collective  interest;  a  private 
interest  "in  concreto"  interests  a  social  group  by  reper- 
cussion. 

Likewise  where  the  question  is  whether  an  heir  is  to  be 
held  for  debts  exceeding  assets,  his  interest  may  be  said 
to  be  personal,  that  of  the  creditors  general.  But  that  of 
the  heirs  is  general  too,  for  if  this  class  is  too  heavily 
burdened  with  debt  heirs  will  not  accept  inheritances. 
On  the  other  hand  creditors  will  be  less  inclined  to 
lend  if  their  right  of  action  against  heirs  is  cut  down, 
and  the  general  interest  of  credit  will  suffer.  Evidently, 
in  such  a  case  as  this,  it  is  very  hard  to  classify  the  in- 
terests as  general  and  particular  and  to  measure  the 
breadth  and  depth  of  each  one. 

§  299.  The  Illusoriness  of  the  Notion  of  General 
Interest.  On  the  whole,  general  interest  is  only  a  con- 
venient expression  for  an  important  collective  interest, 
but  as  in  this  sense  almost  all  interests  are  general,  they 
can  only  be  classified  according  to  their  extent  and 
relative  force,  and  that  clumsily  enough.  We  should 
then  be  suspicious  of  so  convenient  an  expression,  we 
should  see  exactly  what  present  and  future  interests  it 
covers;  and  it  is  only  by  this  painstaking  and  slow 
method,  difficult  to  apply,  and  running  the  risk  of  error 
(for  who  can  measure  the  future  and  uncertain?),  that 
we  can  escape  being  the  dupes  of  a  word  and  can  bring 
to  light,  behind  it,  those  things  that  are  at  the  base 


§299]  GENERAL   INTEREST  545 

of  all  juridical  problems  ■ —  the  primordial  interests  of 
security,  adaptation,  and  expenditure  of  the  least  effort. 
All  of  these  solutions,  morever,  are  only  special  ap- 
plications of  the  solution  which  has  long  been  offered 
for  the  problem  of  the  universal.  The  head  of  the 
nominalists  in  the  1300s,  William  Occam,  wrote:  "The 
universal  is  a  sound  of  the  voice,  a  written  word,  or  any 
other  sign,  whether  conventional  or  of  arbitrary  use, 
which  stands  at  once  for  several  singulars.  The  sign 
is  itself  singular,  it  is  universal  only  representatively, 
so  that  to  be  universal  means  solely  to  represent  or  to 
signify  several  things  at  once."^  These  are  elementary 
truths  which  the  nature  of  our  minds,  poorly  adapted 
to  the  world  of  facts,  sometimes  causes  us  to  forget. 

^  Cited  by  Hauriou,  "Philosophie  Scolastique,"  vol.  ii,  p.  423.  As  to 
the  signal  importance  of  this  theory  in  regard  to  the  notion  of  moral 
persons,   Clunet,  "Les  Associations,"  vol.  i,  pp.  338ff. 


546  RENÉ   DEMOGUE  [Ch.xXI 

CHAPTER  XXI 
FUTURE  INTEREST 

IMPORTANCE  OF  FUTURE  INTERESTS  — TWO  FORMS 
OF  PROTECTION  —  RECONCILING  FUTURE  INTERESTS 
AND  CHANGE  —  THE  LAW  CAN  ONLY  ASPIRE  TO  A  COM- 
PROMISE  SYSTEM. 

§  300.  Importance  of  Future  Interests.  Anxiety  for 
future  interests  may  appear  in  the  law  under  two  forms, 
according  as  it  may  take  a  longer  or  shorter  time  for  the 
interest  to  take  effect.  The  men  of  a  certain  period  may 
feel  that  it  will  be  to  their  interest,  at  a  given  moment, 
to  have  this  or  that  advantage.  An  individual  may 
foresee  that  he  will  perhaps  need  to  acquire  neighboring 
immovables  for  an  enlargement  of  his  factory,  or  that 
he  will  need,  after  so  many  years,  considerable  sums 
of  money  to  provide  for  his  children.  From  another 
point  of  view,  men  may  concern  themselves  with  the 
interests  of  coming  generations,  by  protecting  their 
life  by  measures  against  substitution  at  birth  or  abor- 
tions, and  by  care  for  their  material  and  moral  needs. 
This  care  may  show  itself  in  the  creation  of  establish- 
ments for  the  poor,  the  sick,  and  the  aged,  and  in  the 
opening  of  schools,  or  in  measures  more  concerned  with 
private  law,  such  as  endowments,  donations,  legacies 
to  unborn  children,  marriage  portions,  entails,  pro- 
vision for  long  or  permanent  inalienability  of  property, 
and  so  on. 

In  neither  case  is  the  anxiety  for  future  interests  as 
clear  in  actual  life  as  it  seems  to  the  lucubrations  which 


1300]  FUTURE  INTEREST  547 

isolate  its  various  elements  from  one  another.  In 
practice,  present  are  nearly  always  protected  at  the  same 
time  as  future  interests.  Public  works,  private  con- 
structions even,  are  built  to  serve  the  coming  generations 
as  well  as  the  people  of  to-day,  and  frequently  the  interest 
of  our  descendants  in  juridical  operations,  as  well  as  in 
simple  facts,  is  cloaked  by  the  interest  which  we  our- 
selves possess  in  them  from  this  time  onward. 

§  301.  Two  Forms  of  Protection.  If  we  succeed  in 
isolating  in  our  imagination  the  protection  of  future  in- 
terests, they  will  be  observed  to  be  of  two  forms.  A 
person  may  simply  have  reserved  for  a  future  day,  under 
a  statute  or  by  contract,  the  right  to  modify  such  or 
such  a  rule;  as,  for  example,  in  the  case  of  an  act  per- 
formed under  a  potestative  ^  condition  or  subject  to  the 
happening  of  a  certain  event;  or  when  the  parties  have 
reserved,  or  the  law  guarantees  them,  the  right  to  modify 
or  to  cancel  a  contract  unilaterally  with  or  without 
damages  (articles  1780,  1794,  2004,  Civil  Code);  or 
when  the  stockholders  or  partners  have  the  right  to 
demand  the  anticipated  dissolution  of  the  corporation 
or  partnership.  The  interest  protected  in  this  case  is 
that  need  for  a  social  rearrangement  of  which  we  have 
spoken.  There  is  nothing  to  add  as  to  its  importance  or 
the  difficulties  which  it  raises. 

The  other  form  is  when  a  future  interest  is  sought  to 
be  protected  by  providing  it  from  hence  forth  with  a 
definite  means  of  defense,  with  a  rigid  armature,  of  such 
a  sort  that  there  will  come  about  a  predetermining  state 
of  law,  which  can  be  invoked  by  the  chief  interested 
parties,  and  not  a  simple  permission,  a  simple  possibility 
of  action  along  given  lines.     The  form  of  protection  for 

»  [Some  of  the  standard  English  law  dictionaries  will  be  found  to 
contain  definitions  of  these  technical  terms  of  the  French  law  of  contract. 
— Transl.J 


548  RENÉ   DEMOGUE  [Ch.XXI 

a  future  interest  is  thus  determined  in  advance.  This 
is  the  case  when  possessions  are  declared  inalienable,  or 
subjected  to  the  dotal  régime  or  to  entail,  or  assigned 
under  "casuel"  or  "mixte"^  conditions,  or  dedicated  to 
an  endowment.  It  is  also  the  case  where  juristic  [moral] 
persons  make  important  reservations,  use  of  which 
will  be  made  in  future,  or  by  means  of  which  their  reve- 
nues will  be  devoted  in  perpetuity  to  a  certain  purpose, 
such  as  the  reward  of  certain  attainments  or  the 
assistance  of  the  sick. 

The  creation  of  these  dormant  estates,  partly  or 
wholly  held  in  mortmain,  results  from  the  quest  for 
static  security,  a  quest  of  a  high  order  it  is  true,  for 
preoccupation  with  the  future  is  one  of  the  best  sides  of 
civilization.  It  seeks  to  prolong  a  certain  state  of  fact, 
to  assure  resources  to  persons  who  are  to  live  in  future. 
This  static  security  offers  the  same  advantages  and  raises 
the  same  objections  here  as  everywhere  else.  It  is  in- 
spired by  a  foresight  which  may  appear  prudent,  but 
which  after  the  arrival  of  unlooked-for  events  may  be- 
come in  reality  inept. 

§  302.  Reconciling  Future  Interest  and  Change.  On 
the  whole,  then,  the  protection  of  future  interests,  the 
insurance  of  the  future,  presents  the  same  difficulties 
as  assurance  of  the  proper  working  of  order  and  change 
in  the  domain  of  present  interests.  In  proportion, 
however,  as  the  time  in  which  the  future  interest  will 
take  effect  is  extended,  the  concern  for  change,  and 
adaptability  to  social  development,  increase  in  im- 
portance, just  as  the  danger  that  a  beam  will  bend 
increases  in  proportion  to  its  length. 

There  are  several  ways  of  assuring  this  adaptation. 
The  best  known  is  often  the  masterly  stroke  of  the 
State  or  of  any  other  power  in  altering  the    original 

*  [See  note  1  ante.] 


§302]  FUTURE   INTEREST  549 

destination  of  an  estate.  This  kind  of  coup  d'État 
provides  for  adaptation,  but  destroys  security.  It  has 
nevertheless  often  become  indispensable,  for  man  is  so 
short-sighted  as  naively  to  imagine  that  eternity,  the 
necessity  of  his  life,  is  projected  into  his  world  of  fact, 
and  that  the  present  situation  will  never  change.  There 
result  at  certain  moments,  in  long  continuing  operations, 
sharp  discords  between  that  which  is  established  and  the 
needs  which  must  be  satisfied. 

Nevertheless  by  occasional  glimpses  of  clear  sky  men 
become  aware  of  this  necessity  of  adapting  themselves 
to  the  incessant  renewal  of  things.  Not  to  speak  of  that 
need  of  modifying  endowments  which  law  writers  are 
nowadays  debating,^  we  find  two  forms  of  manifestation 
of  the  care  bestowed  on  the  management  of  future  in- 
terests. 

The  law  in  certain  cases  authorizes  perpetual  contracts, 
and  permits  not  their  modification  but  their  cancel- 
lation. According  to  article  1911  of  the  Civil  Code,  a 
perpetual  annuity  may  always  be  converted  into  a  lump 
sum  by  the  payer  of  the  annuity,  and  so  also  by 
article  530  may  annuities  created  to  pay  for  real  estate. 
In  the  same  spirit,  article  1869  permits  the  dissolution 
of  even  a  perpetual  partnership  by  the  will  of  one  of  the 
partners,  and  article  1780,  as  construed  by  the  courts, 
permits  the  abandonment  of  an  indeterminate  contract 
of  services  for  a  good  cause.  The  courts  have  ruled  that 
any  partner  in  a  perpetual  partnership  may  retire  by 
giving  up  his  share.* 

The  second  form  is  the  prohibition  of  contracts  for 
more  than  a  certain  length  of  time.  Thus  the  famous 
Laws  of  December  18-29, 1790,  prohibited  leases  for  more 

'  See  Bulletin  de  la  Société  d'Etudes  Législatives,  1909,  p.  199  (report  of 
Saleilles),  pp.  302ff.  (report  of  Larnaude) ,  p.  445  (definitive  draft,  article 
15);  JeanEscarra,  "Les  Fondations  en  Angleterre,"  pp.  205ff. 

«  Court  of  Chambéry,  Feb.  20,  1905,  RDC  1905,  p.  353. 


550  RENÉ   DEMOGUE  [Ch.XXI 

than  ninety-nine  years,  and  the  right  of  redemption 
cannot  run  over  five  years  (article  1660,  Civil  Code). 
Under  article  1048  the  entails  permitted  cannot  extend 
to  heirs  more  than  one  degree  distant. 

§  303.  The  Law  Can  Aspire  Only  to  a  Compromise 
System.  In  view  of  this  justifiable  suspicion  of  juridical 
acts  of  long  range,  which  shows  itself  in  prohibitions, 
limitations,  and  reservations  of  the  powers  of  adaptation 
to  new  situations,  or  even  in  the  violations  to  which  these 
acts  are  necessarily  subject,  it  is  proper  to  ask  whether 
it  would  not  be  wise  to  forbid  every  juridical  operation 
of  long  duration.  But  even  this  solution  is  not  accept- 
able. Tormented  by  his  thirst  for  the  infinite,  man 
is  influenced  to  action  only  by  the  prospect  of  infinite 
realizations.  He  wishes  to  establish  perfect  justice, 
to  succor  the  poor  for  ages  to  come.  To  forbid  his 
giving  long  duration  to  his  acts,  to  limit  him  to  the  present 
or  to  the  immediate  future,  would  be  to  destroy  an 
important  spring  of  action,  to  disallow  a  system  of 
static  security  in  the  case  in  which  it  has  the  greatest 
value  —  as  a  spur  to  action.  Probably  the  problem  of 
the  protection  of  future  interests  will  never  be  settled, 
any  more  than  that  of  charitable  work,  which  it  is  well 
to  do  but  most  difiicult  to  do  well.  To  urge  humanity 
to  action,  it  will  always  be  wise  to  offer  it  the  perspective 
of  long  continuing  enterprises,  of  great  things,  but  in 
execution  they  will  not  give  the  desired  result,  or  will 
have  to  be  profoundly  changed.  Here  again,  the  law 
can  do  no  more  than  offer  compromise  systems. 

However  it  may  be  decided  to  treat  future  interests, 
their  place  with  respect  to  present  interests  must  be 
established.  The  interest  of  the  future  is  not  always 
apparent  to  the  general  public.^  Nexertheless  it  is  very 
important  to  look  beyond  this  fact  if  we  are  not  to  fall 

6  See  Izoulet,  op.  cit.,  p.  419. 


§303]  FUTURE   INTEREST  551 

into  utter  narrowness  of  views.  The  simple  recognition 
of  future  interest,  however,  does  not  leave  the  matter 
entirely  clear.  Given  constant  change,  both  in  minds 
and  in  things,  I  have  shown  how  difficult  it  is  to  foresee 
whether  full  satisfaction  will  be  afforded  to  future  in- 
terests. How  can  we  compare  this  unknown  quantity 
with  immediate  interest?  This  would  only  be  through 
the  value  we  would  lend  to  future,  uncertain  interest, 
only  through  the  hope  of  being  still  alive  at  that  future 
moment,  or  through  a  special  interest  that  we  may  have 
in  the  future.  Subjective  appreciation  here  fills  a  large 
place;  it  can  lean  steadily  toward  future  interest  only 
as  the  result  of  a  real  hypnotization  of  thought,  through 
faith,  in  the  true  sense  of  the  word.  In  very  many 
cases,  though  not  in  all,  it  is  impossible  to  calculate 
the  relative  value  of  the  two  interests  in  presence;  by 
pretending  the  contrary,  by  affirming  in  many  cases  the 
necessity  of  making  sacrifices  to  the  future  interest, 
we  are  not  proceeding  scientifically,  but  are  preaching,  as 
men  must  preach  to  induce  action. 

Graver  yet  is  the  question  whether  it  is  permissible 
to  do  juridical  acts  in  which  the  interest  of  future  gener- 
ations is  solely  considered,  and  no  advantage  is  offered 
the  present.  The  courts  have  had  to  wrestle  with  it  in 
connection  with  entails  providing  for  the  capitalization  of 
income  for  the  benefit  of  the  remainderman.^  It  may 
also  appear  in  cases  of  endowments,  the  capital  of  which 
is  at  first  insufficient  and  has  to  be  invested  a  number 
of  years  in  order  that  it  may  suffice  for  the  expenditures 
designated.  In  spite  of  the  difficulties  presented  by 
this  question,  it  seems  advisable,  in  this  eternal  struggle 

«  Court  of  Caen,  Nov.  20.  1906,  Dalloz  1907.2.265  (with  the  note 
by  Planiol),  Sirey  1907.2.313  with  note;  same  case  on  appeal,  Cassation 
March  6,  1908,  Dalloz  1909.1.285  with  the  conclusions  of  Feuilloley. 
These  decisions  have  treated  capitalization  as  lawful.  Contra,  Court 
of  Algiers,  Jan.  20,  1879,  Dalloz  1879.2.143. 


552  RENÉ  DEMOGUE  [Ch.XXI 

between  security  and  development,  to  take  refuge  in  a 
compromise  and  to  allow  these  accumulations  to  the 
extent  to  which  inalienability  is  permitted  —  a  point 
on  which  the  courts  have  taken  a  well-known  middle 
ground  between  the  prohibition  and  the  full  authorization 
of  inalienability  and  exemption  from  execution.' 

Provision  for  future  interests  appears  then,  like  these 
commendable  things,  to  respond  to  one  of  the  highest 
human  instincts,  foresight,  but  to  an  instinct  which 
must  be  treated  with  circumspection,  so  easily  do  the 
facts  and  our  mental  attitude  undergo  change. 

The  future  has  always  been  a  Pandora's  box  for 
humanity,  from  which  it  must  not  be  taken  away. 
We  cannot  neglect  man's  yearning  to  prolong  his  life 
into  the  future,  to  extend  his  lean  earthly  existence. 
But  how  shall  we  prepare  for  the  future?  By  building 
so  solidly  the  master  workmen  of  the  Middle  Ages  have 
gratified  posterity  with  their  uncomfortable  castles; 
by  building  without  careful  thought,  epochs  eager  for 
elegance,  for  too  great  refinement,  have  deprived  us  of 
the  sight  of  many  marvels, 

''  It  is  well  known  that  the  courts  admit  these  clauses  when  they  are 
limited  to  some  years  but  annul  them  when  they  are  perpetuaL 


§304]  MORAL    INTEREST  553 

CHAPTER  XXII 
MORAL    INTEREST 

THE  OBSCURE  BOUNDARY  BETWEEN  MATERIAL  AND 
MORAL  INTEREST  —  INTERESTS  WHICH  HAVE  INTAN- 
GIBLE VALUE  — THE  DIFFICULTIES  WHICH  THE  LEGAL 
PROTECTION  OF  INTANGIBLE  INTERESTS  RAISES —HOW 
THE  EXTENSION  OF  REPARATION  AFFECTS  OTHER 
FUNDAMENTAL  PRINCIPLES  — HOW  OPPOSITE  OBSTACLES 
MAY  BE  AVOIDED  BY  A  MIDDLE  COURSE. 

§  304.  The  Obscure  Boundary  Between  Material  and 
Moral  Interest.  Law  has  always  found  means  to  provide 
for  pecuniary  interest,  but  it  has  experienced  much  diffi- 
culty in  deciding  on  the  place  to  be  given  to  moraU 
interest.2  It  is  to  these  interests  that  we  have  devoted 
this  chapter,  for  it  is  evidently  desirable  that  they  be 
recognized,  and  protected  both  preventively  and  by 
a  system  of  reparation.  The  law,  which  guards  all 
important  interests,  cannot  refuse  to  defend  the  moral 

1  [In  this  chapter  it  seems  best  not  to  translate  the  author's  adjective 
"moral"  by  a  less  elastic  English  expression,  e.g.  "spiritual,"  although 
this  involves  using  the  word  in  a  somewhat  loose  though  recognized 
sense;  compare  the  current  expressions  "moral  effect,"  "moral  support," 
etc.  — Transl.] 

2  The  question  of  moral  interest  has  given  rise  to  important  studies, 
to  which  I  refer:  Jhering,  "De  l'Intérêt  dans  les  Contrats,"  in  "Œuvres 
Choisies,"  vol.  ii,  pp.  145ff. ;  Chausse,  "De  l'Intérêt  d'Affection," 
RCL  1895,  p.  436;  Baudry-Lacantinerie  and  Barde,  "Obligations," 
iv,  p.  287L  Compare  article  151,  Swiss  Civil  Code,  which  allows  damages 
for  mental  injury  alone  in  divorce  cases,  and  article  54,  which  recognizes 
a  right  to  reasonable  damages  in  cases  of  moral  tort.  [This  reference  to 
article  54  is  obscure,  and  an  apparent  error  in  the  French  edition. — Ed.] 

We  do  not  desire  to  treat  this  question  fully,  either  from  the  historical 
or  from  the  theoretical  point  of  view.  We  simply  want  to  show  how 
the  principle  of  allowing  damages  for  moral  injury  conflicts  with  other 
admitted  principles. 


554  RENÉ   DEMOGUE  [Ch.XXII 

ones,  which  are  just  as  important  as  the  rest  —  a  point 
which  Jhering  has  so  thoroughly  treated  that  it  would  be 
folly  to  consider  it  here.^ 

In  the  first  place,  what  should  be  understood  by 
"moral  interest"?  This  is  very  uncertain.  Almost 
every  interest  is  actually  moral  from  certain  points  of 
view  ;  and  almost  everyone,  if  one  goes  to  the  root  of  the 
matter,  descends  to  the  level  of  material  interest,  at 
least  when  it  is  viewed  in  certain  aspects.  In  fact  the 
most  material  possession  —  a  field,  a  book  —  is  a  source 
of  pleasure  to  me  because  of  the  use  to  which  it  may 
be  put,  of  the  memories  which  it  enshrines.  The  wholly 
ideal  pleasure  derived  from  a  miniature,  or  from  a 
beautiful  monument,  represents  an  interest  for  me  which 
has  its  pecuniary  aspects,  and  so  may  the  pleasure  that 
I  may  find  in  giving  orders  to  workmen,  to  get  some 
benefit  from  their  labor,  or  in  obeying  orders  and  thus 
escaping  all  responsibility. 

It  would  be  desirable  to  take  into  account  every  moral 
pleasure,  e\ery  unhappiness  which  may  be  given  by  a 
thing,  so  as  to  make  each  such  sentiment  the  source  of 
a  right;  but  this  theory,  though  very  well  adapted  to 
reality,  would  not  conform  to  the  need  for  security,  to 
the  always  rather  objective  character  which  the  law 
must  assume.  Nothing  could  vary  more  than  the 
sorrow  felt  by  different  persons  at  the  same  happening, 
even  though  they  were  in  an  identical  situation.  Char- 
acter, age,  and  condition  of  health  here  have  a  consider- 
able influence.  Then  again,  what  difficulty  there  would 
be  in  the  proof!  How  could  we  calculate,  even  ap- 
proximately, the  pleasure  which  a  certain  possession 
would  procure  for  a  particular  individual,  or  the  sorrow 
which  its  loss  would  cause  him!  Nothing  would  be 
less  reconcilable  with  the  principle  of  economy  of  time 
»  "Œuvres  Choisies,"  Meulenaere 's  French  transi.,  vol.  ii,  pp.  154ff. 


§304]  MORAL   INTEREST  555 

and  of  activity,  with  the  idea  of  security,  which  pre- 
supposes that  there  is  a  fairly  fixed  basis  for  the  esti- 
mation of  every  right. 

The  law  must,  therefore,  make  objective  estimates  of 
the  pleasures  and  sorrows  which  each  person  may  feel. 
In  practice,  averages  are  established,  and  approximate 
estimates  are  made  of  the  sentiments  which  an  in- 
dividual should  experience,  taking  into  account  social 
condition,  and  the  various  data  for  classification  found 
in  the  circumstances  of  every  individual — reputation, 
profession,  and  age.  This  procedure  simplifies  the 
facts,  and  even  forces  them  to  some  extent;  but  it 
leads  out  of  the  psychological  realm  of  sentiment  into 
the  social,  economic,  or  juridical  sphere  of  interests. 

Placed  on  this  at  least  apparently  more  solid  basis, 
the  law  finds  itself  face  to  face  with  material  and  moral 
interests,  to  make  use  of  current  expressions.  The 
former  are  at  bottom  so  only  in  name.  The  name 
"material"  is  deserved  only  because  a  material  pos- 
session is  damaged;  it  is  by  the  interposition  of  this 
material  object  that  one  is  morally  attacked.^  Moral 
interests  presuppose  a  right  susceptible  of  injury  without 
any  injury  to  a  corporeal  possession,  as  in  the  case,  for 
example,  of  honor,  the  right  to  a  name,  respect  for  the 
dead,  or  legitimate  affections. 

Material  interests,  those  connected  with  the  presence  of 
material  objects,  if  injured  may  be  at  least  approxi- 
mately repaired.  Though  no  one  object  is  absolutely 
identical  with  another,  a  great  many  are  similar  and 
comparable;  money  is  often  a  convenient  term  of 
comparison  between  possessions,  though  it  really  plays 
this  rôle  but  imperfectly.  Without  entering  into  the 
economic  theory  of  value,  whose  difficulties  arise  pre- 

4  This  is  analogous  to  what  all  jurists  have  observed  in  regard  to  so- 
called  corporeal  rights.     In  fact  all  rights  are  corporeal. 


556  RENÉ   DEMOGUE  [Ch.XXII 

cisely  from  that  fact,  note  that  objects  have  an  exact 
value  only  by  reason  of  their  meeting  common  wants, 
which  makes  it  possible  to  establish  a  sort  of  market 
price  for  them.  Rare  and  unique  pieces  have  only  an 
approximate  or  indeterminate  price.  What  is  the  value 
of  the  unique  work  of  a  celebrated  artist,  or  of  a  monu- 
ment of  peculiar  interest? 

§  305.  Interests  Which  Have  Intangible  Value.  Be- 
sides this  sort  of  market  value  of  things,  we  must  take 
into  consideration  that  they  may  have  moral  value. 
A  family  estate  has  a  special  value.  An  old  diploma, 
old  letters,  beyond  their  worth  to  collectors,  may  be 
peculiarly  valuable  to  the  descendants  of  those  whom 
they  concern.  An  old  portrait  is  not  quite  the  same  as 
a  family  portrait.  An  interest  bound  up  with  a  material 
object  may  have,  therefore,  beside  its  pecuniary,  a  moral 
value,  which  should  always  be  estimated  from  the  point 
of  view  of  ordinary  sentiments,  those  which  a  descendant 
usually  has  for  his  ancestors  for  example. 

Other  interests  have  no  direct  relation  to  any  material 
object,  as  in  the  case  of  honor,  the  right  to  a  particular 
name,  family  or  civic  rights.  In  these  cases  it  is  impos- 
sible to  distinguish  a  commercial  value;  there  is  nothing 
but  a  purely  moral  value,  free  from  any  direct  material 
commixture. 

Besides  these  interests,  if  we  keep  always  within  the 
field  of  objective,  average  estimates,  there  are  others 
which,  unlike  the  preceding,  are  not  susceptible  of  private 
appreciation.  Honor  belongs  to  one  person  and  not 
to  another,  and  a  right  of  guardianship  belongs  to  the 
guardian  and  to  no  one  else. 

But  in  the  social  environment,  naturally  vibrant, 
whose  parts  are  for  that  reason  described  as  solidary, 
we  shall  find  by  reason  of  this  circumstance  a  new  source 
of  moral  interests.     Every  act  of  a  single  individual 


§305]  MORAL   INTEREST  557 

reverberates  from  individual  to  individual  with  a  greater 
or  less  remoteness  of  effect:  a  crime  disturbs  a  whole 
population;  the  owner  of  an  old  artistic  structure,  by 
destroying  it,  arouses  a  world  of  amateurs  to  such  an 
extent  that  to  prevent  such  deeds  numerous  societies 
are  formed.  Accordingly,  there  are  acts  which  attack 
accessory  interests  in  attacking  each  individual:  it  may 
be  a  small  thing  that  one  person  in  a  city  is  not  able  to  see 
any  longer  the  bulky  outline  of  some  building  with 
sculptured  façade,  but  when  a  similar  pinprick  is  felt 
by  thousands  it  becomes  a  serious  matter.  Most  great 
public  interests  are  kinds  of  madrepores  which  assume 
a  colossal  importance  when  heaped  up  by  thousands. 
There  are  also  injuries  to  rights  of  a  material  order, 
which  work  no  material  injury,  but  of  which  the  courts 
take  cognizance,^  and  lastly  there  are  the  legitimate 
affections.'' 

§  306.  The  Difficulties  Which  the  Legal  Protection 
of  Intangible  Interests  Raises.  Always  rather  unbending, 
what  can  the  law  do  in  face  of  facts  so  diversified  and 
shading  so  delicately  one  into  another?  Its  utmost 
effort  will  result  in  not  ver>'  happy  compromises. 

It  is  faced  by  two  kinds  of  difficulties,  the  bond  be- 
tween which  is  not  ordinarily  perceived:  the  question 
of  the  reparation  of  moral  injury,  and  that  of  the  admis- 
sibility of  suits  brought  either  by  persons  not  interested 
from  a  material  side,  or  by  associations. 

If  the  law  assumes  to  redress  moral  injury,  the  circle 
of  persons  entitled  to  sue  will  naturally  be  enlarged, 
and  in  many  cases  the  same  act,  instead  of  injuring  a 

6  See  Court  of  Poitiers,  note,  Dec.  24,  1909,  Gazette  du  Palais  l'èOQ 
2.677  and  note. 

6  See  the  distinction  between  moral  interests  and  interest  of  affection 
drawn  hy  Labor  de,  RCL  1894,  p.  26.  On  the  protection  of  this  interest 
see  Mataja,  "Das  Recht  des  Schadenersatz  nach  dem  Standpunkt  der 
Nationalôkonomie,"  p.  135. 


558  RENE   DEMOGUE  [Ch.XXII 

single  person,  will  ground  an  infinite  number  of  rights 
of  action.  The  act  with  juridical  effects  will  be  found  to 
have  consequences  widely  diffused. 

The  problem  is  equally  difficult  however  it  is  ap- 
proached. May  a  moral  injury  be  redressed?  We  have 
already  seen  that  a  material  injury  is  redressed  only 
very  roughly;  as  it  becomes  the  question  of  an  injury 
more  moral  than  material  the  difficulties  increase.  As 
has  been  justly  remarked,''  what  is  proposed  is  nothing 
more  than  some  countervailing  benefit  to  offset  the 
injury,  and  the  idea  of  repairing  injury  is  thus  abandoned. 
The  whole  thing  is  evidently  a  matter  of  more  or  less. 
Almost  every  injury  is  irreparable  and  ineffaceable  if 
it  be  closely  looked  into,  and  accordingly  it  does  not 
seem  that  one  should  balk  at  that  obstacle,  in  times 
accustomed  to  rather  fine  notions,  to  nuances.  When 
it  is  recognized  that  a  material  injury  can  be  repaired 
only  imperfectly  in  spite  of  appearances,  why  refuse  to 
repair  moral  injury  on  the  pretext  that  it  is  subject  to 
the  same  imperfection?  That  is  why,  indeed,  the  rep- 
aration of  moral  injury  seems  bound  to  develop,  even 
though  money  can  be  only  one  of  the  most  imperfect 
equivalents,  and  sometimes  even  a  shocking  one,  for 
wounded  affection,  for  lack  of  respect  for  the  dead,  for 
defamation. 

By  taking  account  of  moral  injury,  whether  by  allow- 
ing it  to  be  made  the  basis  of  a  tort  or  quasi-tort,  or  by 
admitting  the  existence  of  contractual  obligations  cor- 
responding to  interests  simply  moral  or  of  the  affections, 
a  capital  result  is  reached,  the  domain  of  the  law  is 
greatly  enlarged.  If  law  is  designed  (and  that  is  our 
view)  to  satisfy  the  various  human  aspirations,  it  is 
logical  to  include  moral  interests,  for  m.an  does  not  live 
by  bread  alone.      He  has  other  things  in  view  than  his 

1  Dorville,  "L'Intérêt  Moral  dans  les  Obligations,"  pp.  lOff.,  50ff. 


§306]  MORAL   INTEREST  559 

pecuniary  interests.  Ideas  and  affection  have  a  con- 
siderable importance  in  his  eyes. 

The  juridical  character  assigned  to  moral  interest 
produces  another  extension  of  law.  The  number  of 
individuals  entitled  to  take  action  to  maintain  the  same 
right  protective  of  a  moral  interest  quite  naturally 
grows  very  large.  But  isolated  interest,  especially  if 
it  is  simply  moral,  is  often  timid  and  hesitating;  ac- 
cordingly, in  these  very  cases,  relief  is  supplied  in  the 
form  of  those  coagulations  of  individual  rights  of  action, 
those  varied  remedies  recognized  by  the  courts,  which 
are  exercised  by  labor  unions  and  similar  groups.  Let 
us  not  enter  the  difficulties  presented  by  the  question 
of  the  admissibility  of  such  rights  of  action. ^ 

§  307.  Hoiv  the  Extension  of  Reparation  Affects  Other 
Fundamental  Principles.  What  would  be  the  bearings 
of  this  validation  of  moral  interests  on  the  other  directive 
principles  which  govern  private  law? 

Observe,  first  of  all,  that  the  development  of  moral 
rights  naturally  aims  at  the  syndicalization  of  rights  of 
action. 

The  recognition  of  moral  interests  and  of  those  of 
affection  takes  away  much  of  its  practical  effect  from  the 
stiff  old  adage:  He  who  has  no  interest  has  no  action. 
It  is  much  easier  to  dispense  with  the  application  of 
this  rule  if  a  moral  interest  can  be  invoked.  If  law 
should  be  modeled  on  reality,  and  should  not  fix  a  priori 
certain  interests  as  alone  legitimate,  that  rule  becomes 
almost  meaningless.  An  archaeologist  would  be  able 
to  set  up  the  injury  caused  to  him  by  the  demolition  of 
a  picturesque  building,  or  an  artist  his  from  the  entrance 
of  a  factory  into  a  beautiful  landscape.  Rights  become 
popular  in  the  sense  of  the  popular  actions  of  Roman 

8  See  Jean  Escarra,  "Recevabilité  des  Recours  Juridictionnels  Exercés 
par  les  Syndicats  et  Groupements  Analogues." 


560  RENÉ   DEMOGUE  [Ch.XXII 

penal  law.  Every  right  will  have  an  infinity  of 
subjects. 

There  will  thus  be  large  numbers  of  persons  united 
by  the  bond  of  a  common  interest.  No  single  individual 
will  feel  sufhciently  affected  by  these  interests  to  take 
advantage  of  them  in  his  own  person,  so  the  idea  of 
bundling  them  together,  in  the  hands  of  a  group  which 
will  exercise  the  right  of  action,  is  naturally  evolved. 
This  is  the  syndicalization  of  actions,  which  tends  to 
appear  when  many  persons  have  been  injured  slightly 
but  in  exactly  the  same  way;  for  example,  when  some 
one  has  cast  discredit  on  those  who  practise  a  certain 
profession,  or  has  injured  his  neighbors  as  a  whole,  or  all 
the  riparians  on  a  stream.  From  the  social  point  of  view 
it  tends  to  favor  that  tendency  which  is  neither  one  of 
the  State  doctrine  [étatiste]  nor  properly  individualist: 
the  Syndicalist  movement,  that  is  to  say,  the  organization 
of  society  into  bodies,  corporations,  or  syndicates,  that 
is,  collective  powers  not  sovereign,  and  thereby  differ- 
entiated from  the  State. 

The  principal  effect  of  the  protection  of  moral  interests 
is  to  favor  security.  A  man  will  be  protected  in  the  ideas 
and  in  the  sentiments  which  make  up  a  highly  sensitive 
side  of  his  being  in  the  same  way  in  which  he  is  pro- 
tected in  his  material  possessions  ;  the  little  circle  within 
which  he  is  sovereign  and  free  will  be  better  assured  to 
him.  But  this  protection  can  ordinarily  be  conceived 
only  as  giving  static  security,  and  it  may  come  face  to 
face  with  a  corresponding  sentiment  of  dynamic  security. 
There  is  an  opposition  which  must  be  settled  between  the 
legitimate  desire  of  an  individual  not  to  be  defamed 
even  by  posterity,  not  to  have  his  honor  assailed,  and  the 
right  of  the  historian  to  be  free  to  say  anything,  to 
discuss  any  facts  in  order  to  establish  the  truth. 

There  is  a  contradiction,  likewise,  between  the  respect 


§307]  MORAL   INTEREST  561 

due  the  home  and  the  advantage  in  the  propagation  of 
new  ideas,  even  though  they  may  be  subversive.  Here, 
as  elsewhere,  the  protection  of  static  security  is  in  con- 
flict with  the  interest  of  social  rearrangement.  At  the 
same  time  that  the  natural  effect  of  the  admission  of  any 
precise  rule  of  law  favoring  possessors  shows  itself,  and 
static  security  is  developed,  in  another  region  private 
law  is  readily  led  to  act  in  the  manner  of  penal  law. 
Nothing  is  so  close  as  the  theories  of  punitive  damages 
and  of  the  redress  of  moral  injury.  As  damages  have, 
in  such  cases,  only  the  function  of  giving  satisfaction 
—  as  they  have  a  very  indefinite  basis,  the  psychological 
satisfaction  not  being  measurable  —  it  is  easy  to  conclude 
that  reparation  should  be  sufficient  to  discourage  a 
repetition  of  the  offense,  and  the  legislator  is  at  times 
even  led  to  fix  the  amount  of  indemnity  himself, 
which  makes  the  latter  no  more  nor  less  than  punitive 
damages.^ 

§  308.  How  Opposite  Obstacles  May  be  Avoided  by  a 
Middle  Course.  On  another  side  the  force  of  the  law  is 
increased.  As  the  number  of  persons  who  can  act  in 
a  particular  case  is  larger,  the  chances  that  the  law  will 
be  respected  increase.  If  a  donor  may  sue  to  compel 
the  fulfillment  of  conditions  imposed  by  him  in  the  deed 
of  gift  in  favor  of  a  third  party,  if  physicians  may  take 
action  where  one  of  their  fellows  has  been  guilty  of 
malpractice,  it  is  more  probable  that  violations  of  the 
law  will  be  punished. 

On  the  other  hand,  as  might  be  expected,  the  protection 
of  moral  interests  augments  the  risks  of  activity:   the 

•  See  article  117  of  the  Penal  Code,  which  provides  that  the  damages 
for  violation  of  individual  liberty  cannot  be  less  than  twenty-five  francs 
for  each  day  of  arbitrary  detention. 

See  on  the  very  close  connection  between  the  ideas  of  the  redress  of 
moral  injury  and  punitive  damages,  Dorville,  op.  cit.,  pp.  346fï.  ;  Hu- 
gueney,  "L'Idée  de  la  Peine  Privée,"  pp.  65,  57ff.,  238flf. 


562  RENÉ   DEMOGUE  [Ch.XXII 

more  so  in  that  there  is  danger,  not  only  of  a  judgment  for 
damages  for  a  moral  injury  which  has  been  caused,  but 
that  the  amount  of  such  a  judgment  will  be  necessarily 
arbitrary  to  a  certain  degree.  This  would  create  an 
extremely  dangerous  condition,  were  it  not  for  the  rôle 
of  imitation,  which  softens  the  sharp  angles  of  theory. 
Our  courts  are  not,  in  fact,  accustomed  to  give  heavy 
damages  for  mere  moral  injury.  At  the  same  time,  just 
because  of  the  arbitrary  character  of  the  satisfaction 
given,  the  idea  of  justice,  conceived  as  an  equality  be- 
tween injury  and  damages,  is  excluded,  and  almost  in- 
exorably replaced  by  a  conception  close  to  that  of  peno- 
logy —  responsibility  fixed  according  to  degree  of  fault. 

Furthermore,  every  enlargement  of  the  domain  in  which 
the  law  rules  is  evidently  a  source  of  complication; 
it  will  prejudice  economy  of  time  and  activity.  It 
increases  strife,  and  the  law,  embarrassed  by  the  very 
circumstance  that  it  is  trying  to  extend  its  empire,  is 
exposed  to  a  loss  of  force,  to  the  danger  of  being  able  to 
strike  only  occasional  blows;  which  is  one  of  the  most 
common  forms  of  arbitrary  action  in  all  civilizations. 

Let  us  seek  a  ground  for  the  reconciliation  of  these 
opposed  ideas.  On  one  side  must  be  taken  into  account 
the  need  of  considering  moral  injury  and  private  moral 
interest,  and  on  the  other  the  impossibility  of  proper 
preventive  protection  by  means  of  injunctions  or  en- 
abling orders,  and  finally  the  inconvenience  of  giving  too 
wide  a  circle  of  persons  the  right  to  compel  the  repair 
of  moral  injuries.  One  may  say  that  as  a  compromise 
between  these  two  different  ideas,  the  restoration  of 
punitive  damages  would  be  a  logical  conclusion,  though 
we  do  not  wish  here  to  recount  the  history  of  this  in- 
stitution.^"    Precisely  because  it  is  its  nature  to  be  fairly 

loSee  in  this  subject  Hugueney,  "De  la  Peine  Privée  en  Droit  Con- 
temporain." 


§308]  MORAL   INTEREST  563 

regular  does  it  escape  being  too  arbitrary.^^  It  does 
away  with  the  often  difficult  calculations  of  the  amount 
of  damages,  thus  satisfying  the  law  of  economy  of  effort. ^^ 
By  its  high  figure  it  fully  satisfies  the  persons  interested 
and  tends  to  diminish  the  number  of  those  entitled  to 
claim  it.  The  system  of  punitive  damages  is  available 
only  to  a  single  individual  or  to  a  personified  group, 
which  prevents  the  multiplication  of  suits,  respecting, 
here  again,  the  law  of  economy  of  effort.  Finally  its 
punitive  quality  lessens  the  chances  of  repetition  of  in- 
fractions by  intimidating  possible  imitators.  It  is  thus 
singularly  fortunate  in  grouping  on  a  new  ground  the 
advantages  sought  by  different  needs;  and  the  only 
thing  against  it  is  the  high  amount,  which  looks  for- 
midable at  first  sight,  and  so  discredits  it  to  a  generation 
which  wants  to  soften  everything.  It  really  constitutes 
a  grave  risk  to  run  for  those  whose  activity  may  morally 
injure  others,  but  a  risk  which  may  be  lessened  by  the 
power  of  the  judge  to  exercise  his  discretion  between  a 
fixed  minimum  and  maximum,  in  estimating  the  degree 
of  fault.  It  offers  a  happy  compromise  for  arbitrary 
restraint.  Nevertheless,  favoring  as  it  does  static 
security,  it  is  inimical  in  a  certain  degree  to  activity, 
and  a  part  of  the  desiderata  we  have  indicated  fail  to 
be  satisfied. 

"  Compare  ibid.,  p.  329. 

"  See  Jhering,  "Œuvres  Choisies,"  French  transi,  by  Meulenaere,  vol.  ii, 
p.  157. 


564  RENÉ   DEMOGUE  [Ch.  XXIII 

CHAPTER  XXIII 
CONCLUSION 

THE  TENDENCY  TO  OVERSIMPLIFICATION:  FICTIONS 
OF  UNITY  AND  OPPOSITION  —  IMPOSSIBILITY  OF  A 
STABLE  EQUILIBRIUM  — COMPROMISE,  NOT  LOGICAL 
SYNTHESIS,  THE  GOAL  OF  JURIDICAL  EFFORT  —  IM- 
PORTANCE   OF    LEGAL    TECHNIC. 


"We  here  reach  those  whirlpools  of  the  human  mind  in 
which  man  is  tossed  from  one  contradiction  to  another. 
Having  come  so  far  one  should  halt." 

Renan,  "Dialogues  Philosophiques,"  p.  147» 


§  309.  The  Tendency  to  Oversimplification:  Fictions 
of  Unity  and  Opposition.  This  rapid  examination  of  the 
principal  ideas  that  come  into  play  in  the  theory  of 
private  law  makes  it  now  possible  to  express  con- 
clusions with  greater  force. 

The  simplicity  which  our  minds  require  ^  does  not 
appear  to  be  the  law  of  the  exterior  world.  It  is  a 
proceeding  for  acquiring  knowledge,  a  necessary  logical 
mode  of  knowledge,  a  method  of  teaching,  a  means  of 
investigation  —  for  hypothesis  is  the  basis  of  discovery. 
There  is  no  proof,  on  the  other  hand,  that  it  is  the  law 
of  things. 

The  simplist^  theories  —  such  as  those  of  a  world 
steadily  advancing,  of  a  world  of  infinite  perfectibility, 

»  Compare  Tarde.  "Les  Lois  Sociales,"  RMM  1898,  p.  342. 

2  [The  author's  word  is  here  retained,  in  view  of  the  lack  of  any  equiva- 
lent term,  short  of  awkward  paraphrase,  for  the  self-explanatory  notion 
of  "simplism." — Transl.] 


§309]  CONCLUSION  565 

of  solidarity  and  fraternity  unfolding  themselves  ever 
more  and  more  —  seem  just  as  exaggerated  as  the  duel- 
istic  theories,  if  I  may  be  permitted  to  coin  a  word, 
which  see  everywhere  in  life  a  struggle  between  two 
opposite  principles  —  individualism  and  socialism,  au- 
thority and  liberty,  progress  and  reaction,  State  and  in- 
dividual. Correct  as  approximations,  as  methods  of 
instruction,  these  duels,  if  closely  examined,  are  really 
battles  between  masses,  certain  parts  of  which  support 
or  oppose  just  as  well  one  as  the  other  of  the  two  com- 
batants.' 

In  the  presence  of  this  infinite  complexity  which  is 
the  law  of  facts,  it  therefore  results,  inevitably,  that  the 
theories  which  pretend  to  a  complete  simplicity,  to  a 
rigorous  unity,  in  their  preoccupation  with  one  thing, 
are  certain  to  receive  sudden  checks  and  to  go  to  rest  in 
the  already  overcrowded  mausoleum  of  human  dreams. 
Consequently  there  has  existed  for  a  long  time  a  vague 
consciousness  of  an  opposition  of  things  which  has 
to  be  reckoned  with .  Some  state  particular  oppositions^  ; 
other  recognize  the  diversity  but  seek  behind  it  a  general 
harmony  in  results.^  Still  others,  yielding  only  for  form's 
sake  to  the  laws  of  the  mind,  end  in  referring  everything 
only  to  "the  largest  and  most  comprehensive  verbal 
unity,"  to  that  philosophic  generalization  which  sums  up 
most  completely,  and  under  the  most  appropriate  terms, 
the  infinite  complexity  of  diverse  elements  without 
entirely  covering  them.^  Others,  again,  seek  to  discover, 
at  least  from  the  technical  point  of  view,  or  from  that 

»  There  is  a  very  complete  exposition  of  the  simplistic  or  dualistic 
[sic]  theories  of  the  basis  of  law  ïnBoistel,  "Philosophie  du  Droit,"  vol.  i. 

*  SeeLasalle,  "A  propos  de  la  Théorie  de  l'Hérédité,"  cited  by  Jhering, 
"Etudes  Complémentaires  du  Droit  Romain,"  vol.  iv,  p.  93. 

'  See  Jhering,  "Zweck  im  Recht,"  French  éd.  p.  29.  Compare  Van 
der  Eycken,  "Méthode  Positive  d'Interprétation,"  p.  333;  Bougie,  "La 
Crise  du  Libéralisme,"  RMM  1902,  p.  639. 

•  Tanon,  "L'Evolution  du  Droit  et  la  Conscience  Sociale,"  pp.  163,  164- 


566  RENÉ   DEMOGUE  [Ch.  XXIII 

of  the  structure  of  rights,  the  abiding  abstract  juridical 
elements.' 

It  is  therefore  not  surprising  that  latterly  a  student 
of  the  theory  of  the  State^  observed  "the  most  discon- 
certing amalgamations,  traces  of  the  interpénétration 
of  adverse  doctrines,  in  a  great  number  of  books."  He 
sees  in  this  a  proof  of  the  persistent  and  increasing  un- 
certainty of  ideas. 

Must  we  resign  ourselves  to  this  state  of  affairs, 
satisfying  neither  our  mental  needs  of  simplicity  nor  the 
dynamic  needs  of  the  practical  and  even  moral  life, 
which  calls  for  a  rule? 

§310.  Impossibility  of  a  Stable  EgtiiUbrium.  Society 
is  torn  between  many  differing  and  opposite  needs,  con- 
nected with  the  requirements  of  security  and  change, 
and  with  economy  of  effort.  It  admits  that  human 
life  should  be  respected,  that  it  has  a  value;  this  postu- 
late established,  it  takes  life  by  war,  by  capital  punish- 
ment, and  more  often  indeed,  as  is  too  frequently  for- 
gotten, by  the  forced  unheal th fulness  of  its  industries, 
by  the  ever  multiplying  accidents  of  its  constantly 
greater  activity. 

Society  should  seek  to  banish  violence;  but  too  great 
a  peace  is  dangerous,  and  men  must  be  ready  to  defend 
their  rights,  to  reestablish  even  by  force  balances  too 
plainly  upset.  We  scarcely  pity  those  who  do  not  dare 
so  much.^ 

It  should  develop  the  juristic  spirit,  the  spirit  of  logic, 
but  at  the  same  time  the  critical  spirit  which  sees  reality.*" 

So  it  is  with  the  liberty  which  is  said  to  be  indispensable 

">  See  Picard,  "Le  Droit  Pur";    Rogiiin,  "La  Regie  de  Droit." 

8  Henry  Michel,  "L'Idée  de  l'État,"  pp.  529ff. 

•  See  the  reflections  of  Sorel  on  violence,  "Mouvement  Socialiste," 
1906,  vol.  i,  p.  29. 

">  See  Levy-  Ullmann,  "Programme  d'Introduction  à  un  Cours  de  Droit 
Civil,"  RDC  1903,  p.  838. 


§3io: 


CONCLUSION  567 


to  every  civilized  group,"  and  so  it  is  with  everything 
which  society  venerates,  respects,  and  attacks  simul- 
taneously. 

Is  this  all  mere  matter  for  a  display  of  cleverness.i^ 
or  is  it  the  most  disturbing  of  problems? 

I  do  not  think,  as  Bentham  in  spite  of  his  excellent 
practical  sense  imagined  could  be  done.i^  that  anyone 
will  ever  completely  succeed  in  classifying  these  various 
interests  accurately  and  always  in  the  same  way,  inas- 
much as  security  and  equality  should  with  the  passage 
of  time  become  reconciled,  and  equality  must  provision- 
ally give  way  to  security. 

That  clearly  defined  classification  which  he  drew  from 
pyschology  does  not  seem  to  us  unchangeable,  like  the 
old  classical  laws  of  orthodox  political  economy.  It 
would  be  rather  a  center  of  attraction,  from  which  one 
would  deviate  more  or  less  in  different  directions.  I 
do  not  even  think  that  law  can  be  regarded  a  trust- 
worthy notation  of  the  different  values  of  interests  under 
consideration. 1*  For  these  values  are  in  part  attributed 
to  them  by  our  own  temperament,^^  and  consequently 
possess  a  certain  variability. 

In  the  opposition  which  ideas  cause  to  arise  at  a  given 
moment,  the  law  of  simplicity  of  the  mind  discloses  a 
conflict  bound  to  end  in  the  death  of  the  vanquished. 
This  is  an  error.  Each  one  of  the  sentiments  is  rooted 
in  the  needs  of  human  nature,  and  the  conquered  one 
has  a  right  to  its  revenge.  As  slaves,  in  the  times  of 
the  Saturnalia,  got  their  few  days'  compensation  for 

11  See  Schalz,  "L'Individualisme,"  p.  317. 

12  This  would  not  date  from  the  present  time:  see  Laboulaye.  Le 
Prince  Caniche,"  chap.  v.  ,..,•• 

1»  "Principes  du  Code  Civil,"  ed.  Dumont.  chaps,  vi.  xi,  and  xu. 
fSee  chap,  xvii,  footnote  7,  p.  503  ante.—  Ed.] 

H  See  to  the  contrary  Van  der  Eycken,  "Méthode  Positive  d  Interpre- 

^il°cômpare  Haiiriou,  "Science  Sociale  Traditionnelle,"  p.  102. 


568  RENÉ   DEMOGUE  [Ch.XXIII 

the  burden  of  a  long  obedience,  so  rejected  ideas  must 
retake,  sooner  or  later,  a  part  of  their  lost  ground; 
whence  cornes  that  satisfaction,  to  a  certain  extent,  of 
contradictory  desires  which  is  completed  by  illusion  and 
hope.  Besides,  this  strife  is  not  fruitless.  It  has 
already  been  noted  that,  between  identity  and  flat 
contradiction,  both  sterile,  there  is  a  chain  of  inter- 
mediaries in  part  fruitful. ^^  From  the  strife  of  the  ele- 
ments which  they  contain,  from  their  oppositions  brought 
to  light  through  speculation  and  experience,  is  born 
that  slow  process  of  change  which  we  call  evolution, 
or  the  abrupt  outbursts  of  revolution.  Change  must 
come,  for  social  equilibrium  is  instable,  since  everybody 
always  obtains  either  too  much  or  too  little.  Thus 
in  the  continual  movement  which  is  life,  as  in  the  walk 
of  any  living  being,  equilibrium  is  realized  by  means 
of  successive  disequilibria  which  are  limited  in  different 
ways.  Accordingly,  though  no  decision  can  be  affirmed 
to  be  absolutely  permanent,  many  exist  only  to  be 
modified,  or  attain  new  values  under  different  names. 
And  so,  to  carry  out  the  thought  more  fully,  we  see  that 
we  must  accept  certain  contradictions,'^  that  we  must 
grasp  firmly  opposing  principles  to  be  accepted  only  as 
general  tendencies,  which  for  the  moment,  according  to 
circumstances,  will  either  acquire  a  large  domain  through 
wholesome  conquests  or  become  contracted. 

The  never  ending  conflict  for  law  is  thus  accounted 
for.18 

Accordingly  our  minds  which  aspire  to  precision, 
and  the  public  which  demands  of  science  formulae 
great  and  small  for  the  attainment   of    exact  results, 

"  Paulhan,  "La  Logique  de  la  Contradiction,"  RP  1910,  p.  129. 

1'  Paulhan,  ibid.  p.  292.  Especially  the  examples  which  he  gives  à 
propos  of  Bossuet  and  Friedel. 

i^Jhering,  "Der  Kampf  urns  Recht."  Compare  Picard,  "Le  Droit 
Pur,"  p.  260. 


§310]  CONCLUSION  569 

can  never  be  satisfied.  Such  certainty  is  impossible. 
Study  will  show  how  to  keep  clear  of  certain  errors, 
without  always  fixing  the  exact  and  certain  truth;  it 
shows  us  that  there  ought  to  be  a  general  equilibrium  — 
not  the  mawkish  peace  in  which  every  one  is  calm, 
relying  on  others  for  the  happiness  of  all,  but  rather  the 
peace  of  an  evening  after  a  battle,  or  of  two  adversaries 
who  measure  their  forces;  it  shows  us  a  succession  of 
states  of  disequilibrium,  which  sometimes  give  way  to 
one  another  by  violence,  and  tend  in  different  directions. 

What  shall  we  finally  conclude  from  the  practical  point 
of  view?  Are  there  no  points  to  bring  out  in  regard  to 
this  middle  ground  between  divergent  principles?  Is 
the  contest  between  hostile  ideas  always  sharp?  Not  at 
all  ;  theories  born  of  human  needs,  although  correspond- 
ing to  an  objective  reality  in  regard  to  which  it  is  hard 
to  express  an  opinion,  appear  like  the  trees  of  a  forest, 
which  though  not  numerous  underneath  divide  and 
subdivide  into  many  intertwining  branches  overhead. 
Sometimes  the  branches  of  opposite  trees  converge 
toward  the  same  point,  sometimes  they  separate.  Like- 
wise the  subdivisions  of  the  same  theories  now  lend 
themselves  to  reconciliations,  to  happy  congruences 
with  different  theories,  and  now  they  are  opposed. 
Nature  and  the  moral  world  seem  to  unite  complex 
elements  and  to  compel  them  to  live  together  more  or 
less  harmoniously. 

§  31L  Compromise,  Not  Logical  Synthesis,  the  Goal 
of  Juridical  Effort.  May  we  hope  that  the  human  brain 
will  one  day  be  strong  enough  to  unite  in  one  harmonious 
synthesis  the  elements  on  which  law  depends?  I  do 
not  believe  that  it  is  possible.  We  can  make  fortunate 
reconciliations  - —  an  eflort  which  is  even  facilitated  by 
the  shut-in  character  of  every  society^^;  but  we  must 

"  See   Hauriou,  "Science  Sociale  Traditionnelle,"  p.  122. 


570  RENÉ   DEMOGUE  [Ch.xXIII 

be  conscious  of  their  imperfection,  remembering  that 
thought  of  Montesquieu  with  which  he  has  headed  a 
chapter  —  that  we  must  not  correct  everything.^'^  To 
bring  about  reconcihations  is,  nevertheless,  the  great 
rôle  of  jurists.  We  may  hope  to  make  contrary  principles 
live  together  willingly  or  under  compulsion,  by  cutting 
out  a  little  here  and  a  little  there.  Of  course  this  makes 
the  law  a  subtle  science,  but  it  cannot  be  avoided,  and 
as  Montesquieu  says,  "It  is  not  surprising  to  find  in 
the  laws  of  [well  regulated]  States  so  many  rules,  re- 
strictions, and  extensions,  which  multiply  particular 
cases  and  seem  to  make  an  art  of  reason  itself."  That 
subtlety  with  which  law  has  been  so  often  reproached, 
and  which  is  an  evil,  may  be  a  protection  against  greater 
evils,  and  may  be  compensated  by  giving  occasional 
satisfaction  to  the  needs  of  simplification.  As  Montes- 
quieu observed,  despots  alone  try  to  govern  everything 
with  a  general  scheme  of  behavior  and  a  rigid  will. 
Without  doubt  these  complexities  are  often  a  defect. 
"In  proportion  to  the  multiplication  of  judgments,  the 
law  of  the  courts  is  weighted  down  by  decisions  which 
are  often  contradictory  either  because  succeeding  judges 
differ  in  opinion,  or  because  similar  cases  are  now  ably, 
now  badly  defended,  or  because  of  the  infinity  of  abuses 
which  slip  into  all  that  passes  by  the  hand  of  man. 
This  is  an  unavoidable  evil  which  the  legislator  corrects 
from  time  to  time."^^ 

Let  us  not  call,  then,  the  goal  of  our  juridical  efforts 
a  stable  equilibrium.  The  perfect  balance  of  the  scales 
occurs  only  as  an  exceptional  manipulation  of  forces  in 
the  physical  world.  The  moral  and  physical  worlds  are 
made  up  only  of  approximate  equilibria.  As  the 
seasons  are  regularly  composed  of  an  infinite  irregularity 

20  "Esprit  des  Lois,"  Book  xix,  chap.  vi. 
"  "Esprit  des  Lois,"  Book  vi,  chap.  i. 


§311]  CONCLUSION  571 

of  atmospheric  changes,  so  the  balance  between  the 
social  worid  and  the  most  lasting  aspirations  of  the  human 
mind  can  be  brought  about  by  means  of  continual, 
varied  disturbances  of  equilibrium. 

That  is  the  complex  law  of  life  which  we  can  perceive 
indistinctly  but  cannot  clearly  express.  Because  of  it 
the  different  theories  of  life  which  have  been  half  per- 
ceived by  the  masters,  then  seen  by  the  hypnotized 
gaze  of  their  disciples,  have  all  sadly  declined  one  after 
the  other. 

What  shall  the  law  do,  that  science  which  pushes 
research  to  the  point  of  pretending  to  settle  the  infinitely 
small  conflicts  of  daily  existence  so  as  to  bring  about 
security? 

It  may  hope  to  make,  by  the  exercise  of  ingenuity, 
small  or  medium-sized  constructions  in  which  the  different 
materials  wnll  be  happily  combined;  it  will  settle  con- 
flict by  applying  a  precise  though  temporary  solution, 
and  it  may  even  respond  more  particularly  to  the  tastes 
of  a  given  epoch  and  give  them  a  certain  style.^^  It 
cannot,  however,  combine  everything  so  that  nothing 
will  be  left  outside  it  of  the  force  which  will  wear  away 
or  tear  down  the  edifice.  There  will  always  remain 
something  after  these  reiterated  attempts,  these  heaped 
up  ruins.  Certain  human  needs  will  still  appear  to  be 
of  special  importance,  although  they  will  sometimes  have 
remained  for  a  long  time  unsatisfied,  and  although  the 
history  of  society  abounds  in  paradoxes,  in  situations 
without  equilibrium  which  have  lasted  long. 

§  312.  Importance  of  Legal  Technic.  On  another  side 
law  can  perfect  its  technic,  that  is  to  say  its  methods  of 
perfectly  attaining  an  end,  or  even  several  ends  simultan- 

"  Has  not  Pothier  the  limpid  elegance  of  the  Louis  XVI  style,  and  have 
not  the  jurists  of  the  early  IfSOOs  all  the  stiffness  of  the  style  of  the  Em- 
pire? Law,  like  art,  is  bound  up  with  the  civilization  which  brought  it 
into  being. 


572  RENÉ   DEMOGUE  [Ch.  XXIII 

eously.  This  is  the  only  side  on  which  it  is  certain  that 
progress  is  possible.^'^  What  is  the  value  of  these  ends? 
That  is  another  point  much  harder  to  settle.  In  every 
case  the  arts,  like  law,  can  be  perfected  more  especially 
from  the  point  of  view  of  technic.  After  all,  has  anyone 
ever  defined  beauty?  Nevertheless  there  are  beautiful 
works  which  have  been  regarded  as  such  for  centuries. 

This  is  not  everything.  It  is  nothing  that  can  satisfy 
the  thirst  for  infinity  in  the  soul  of  man.  But  beyond, 
in  the  realm  of  the  unknown  —  in  which  we  need  not 
express  the  importance  to  be  assigned  to  the  unknowable 
—  there  remains  what  Antiquity,  in  default  of  aught 
else,  left  at  the  bottom  of  Pandora's  box:   Hope  eternal. 

»3  Compare 5ore/,  "Les  Illusions  du  Progrès,"  p.  49. 


INDEX 


[The  numbers  refer  to  the  pages.] 


Aguanno,  d',  482. 
Ahrens.  381,  382. 
Alembert,  8. 
Alengry,  252. 
Alvarez,  373. 
"Americanism,"  212,  476. 
Andler,  92.  273.  536. 
Aquinas,  xxx,  54,  137,  263. 
Ardigo,  62. 

Aristotle.  150.  263.  270,  307. 
Atger.  135. 
Aubry,  381. 

Balmès,  136. 
Barbeyrac.  141. 
Barde,  93,  503.  553. 
Barthélémy.  71,  128,  131.  462. 
Baudry-Lacantinerie,  93,  381,  503, 

553. 
Bayet,  876. 

Beaussire,  107.  365,  371. 
Bélime,  481. 
Belivagua,  482. 
Belot.  66.  78.  79.  379. 
Bentham,   17,  66,    107,  212.   218. 
397,  420,  481.  603.  504,  517. 
566. 
Bergbohm.  316. 
Bergson,  xlix,  104. 

Bernatzik.  241. 

Bernés.  108. 

Berolzheimer.  358,  365,  369,  418. 

Bertauld,  614.  619.  523.  524. 

Beudant,  74.   107,  365,  366.  370 
371,  376. 

Bèze,  de,  137. 

Bezin,  de,  425. 

Bierling,  382. 

Binding,  322,  358. 

Biran,  de,  60. 

Blanc,  209. 

Blondel,  104,  271,  288. 

Bluntschli,  238. 


Boccardo,  62. 
Boétie,  la,  266. 
Boileau,  35. 
Bois-Guillebert.  40. 
Bois-Reymond.  212. 
Boistel.  107.  371.  423,  565. 
Bonald,  de,  2. 
Bossuet,  64,  568. 
Bouasse,  252. 

Bougie,  84.  85.  90,  94,  95.  96.  280, 
358.  385.  466,  500.  501.  526. 
628,  532,  565. 
Bourdeau,  99,  102,  104. 
Bourgeois,  86,  86,  87.  89.  95,  96. 
260.  299,  371,  406.  525,  526, 
627.  536. 

Bourgoin.  91.  490. 

Boutroux.  77,  80,  81,  87,  90,  97, 
98.  99.  143.  144.  145.  451. 

Briand.  75. 

Briet.  315. 

Brunetière.  xxxvii.  xl.  xliii. 

Brunot.  526.  529,  532. 

Bureau,  70,  76.  78.  88. 

Burke.  184. 

Caesar.  11. 

Campion,  426. 

Cantecor,  379. 

Capitant,  349,  475.  523. 

Cartesianism.  2.  50ff..  261. 

Cavour,  16. 

Charmont.     cited     by     Demogue. 

365.  370.  371.  398,  400,  417. 

526.  537. 
Chateaubriand.  3. 
Chausse,  122,  461,  563. 
Chavegrin,  141. 
Clifford,  220. 
Clunet,  546. 
Coercion,  171,  310ff..  327.  365ff.. 

416ff.,621.     See  Force. 
Cogliolo,  62. 


574 


INDEX 


[The  numbers  refer  to  the  pages.] 


Colins,  483. 

Compromise,  in  the  law,  li,  393, 

394,  412,  462.  468,  496,  550, 

569ff. 
Compulsory  military  service,   see 

Conflict. 
Comte,  xxxii,  31,  57ff.,  65,  66,  68, 

161,  166,  252,  422,  429. 
Condillac,  180,  261. 
Condorcet,  31,  53,  55. 
Conflict    between    the    individual 

and   the  State,   Ixvi,   95,   96, 

133ff.,  399. 
Constant,  128,  514. 
Contract,  110,  477,  513.  516,  521, 

647,   547,  548;    of   adhesion, 

472,  477. 
Courcelles-Seneuil,  365,  370,  375, 

383,  396.  400,  402,  421,  470. 
Cousin,  xxxii,  35,  60,  61,  151ff. 
Cremieu,  424. 

Croiset.  76,  86,  371,  372,  394.  413. 
Cruet,  509. 

Danten,  70,  364. 

Darlu,  273. 

Darwin,  213. 

Daunou,  514. 

Dereux,  425.  529,  531. 

Descartes.  2,  50.  61.  52,  55,  175. 

261. 
Deslandres,  128,  256,  372. 
Desserteaux,  110. 
Deuve,  527,  629. 
Dicey,  402. 
Diderot,  8. 

Division  of  Labor,  274fï. 
Division  of  Losses,  525ff. 
Dorville,  558,  561. 
Douarche,  137. 
Duguit,   cited   by   Charmont,    81, 

125ff..     137;      by     Demogue, 

422,  455,  468. 
Dunan.  362,  501. 
Dunoyer,  421. 
Dupont-White,  523. 
Duranton,  113. 
Durkheim,  xxxii,  xlv,  xlvi,  66,  84, 

85,   258,   265,   266,   268,   274, 

275,  277,  282.  283,  284,  288. 

295,  376. 


Duvergier,  113. 

Ehrhardt,  69. 

Eichthal,  d',  525,  527,  532. 

Engels,  245. 

Epicurus,  155,  157,  193. 

Equality,    37ff.,    61,    274fï.,    280. 

498,  500fï. 
Escarra,  381,  464,  549,  559. 
Esmein,  xlv,  241,  422,  465. 
Espinas,  66,  203,  266. 
Eycken,    van   der,   382,   465,   481, 

565.  567. 

Faguet,  280.  378,  396,  414. 
Fault,  civil  liability  for.  122,  434, 

475,  488ff.,  522,  562. 
Fenet,  113. 
Ferrero.  476. 
Ferri,  62. 
Feuillolcy,  551. 
Fichte,  xxxii,  2,  151. 
Fonsegrive,  262. 
Force,  207ff.,  301,  302,  .342.  355fif., 

365,  366.     See  Coercion. 
Force-ideas,   xl,    179ff.,    207,   224. 

368,  4.30. 
Formalities,  449ff.,  426.  472. 
Fouillée,  referred  to  by  Charmont. 
84;      by     Duguit,     288;      by 
Demogue,  379. 
Fourcade,  381. 
Fourier,  68. 
Franck,  107.  371. 
Free  Judicial  Interpretation. Il2flf., 

249,  374,  465. 
Free  Will.  152ff.,  163fï. 
French  Civil  Code  — 
art.  132,  492. 
208,  492. 
630.  521  and  649, 
549.  424.  489. 
655.  489.  614. 
686.  512. 
855.  631. 
S59ff.,  462. 
861,  487, 
876,  630. 

929,  462. 

930,  462 
933,  614. 


INDEX 


575 


[The  numbers  refer  to  the  pages.] 


French  Civil  Code  — continued. 
art.  939,  426. 

958ff.,  462,  478. 
959,  478. 
1048,  478,  550. 
1069ff.,  462. 
1119,  514. 
1121,  514,  517. 
1129,  513. 

1141,  505. 

1142,  511,514. 
1146,  530. 
1147ff.,  622. 
1148,  503. 

1150,  489.  522,  530. 

1151,  522. 
1156,  513. 
1165,  514. 
1184,  487. 
1304,  478. 
1328,  505. 
1351,  515. 
1382,  522. 

1384,  522. 

1385,  522. 

1386,  522. 
1437,  487. 
1631,  487. 
1660,  478,  550. 
1681,  530. 
1690,  426,  505. 

1780,  117,  519.  520,  547 

549. 
1794,  547. 
1854,  117. 
1869,  520,  549. 
1911,  521,  549. 

2004,  547. 

2005,  489. 
2093,  483,  484. 

2101,  492,  493.  537. 

2102,  493. 
2220,  519. 
2257,  461. 
2262,  424. 
2265,  424,  489. 
2279,  424.  489. 

Friedel.  568. 
Fur,  le,  247. 
Future  Interest,  546ff. 


Garofalo,  62. 

Garraud,  139. 

Gaudemet,  516. 

Gaultier,  379. 

General  Interest,  538ff. 

Gény,  xlii,  xliii,  93,  112ff.,  131,  132- 

249,  298.  316,  426,  465.  529. 
Gerber,  239. 

Gide.  67,  83,  84,  97,  265. 
Gierke,  239.  250,  315,  332ff. 

Glasson,  526. 

Gneist,  17,  250,  333. 

Goethe,  2.  200. 

Goncourt,  de,  469. 

Gregory  XVI,  136. 

Groppali,  526,  536. 

Grote,  212. 

Grotius,  141. 

Guizot,  152. 

Guyau,  xxxvii,  288,  445. 

Hamilton,  199. 
Hans,  444,  635. 
Hartmann,  xxxii,  31,  234. 
Hauriou,  li,  132,  239,  252,  359,  365, 
368,  392,  394,  412,  414,  415, 
425,  470,  645,  567,  569. 
Hébert,  99. 
Hegel,  xxxii,  2,  35,  52,  213,  230. 

310.  311,  373. 
Heine.  15,  20.  24,  33. 
Heraclitus,  193. 
Herbart,  2. 
Hermann,  2. 
Hildenburg,  489. 
Hobbes,  2,  218,  364. 
Hoenel,  333. 
Holbach,  8. 
Hugueney,  661,  662. 
Hume,  80,  421. 

Ideal  Law,  190,  207ff.,  223,  368ff., 
398ff.     See  Natural  Law. 

Individuation,  problem  of,  193. 

Insurance,  432. 

Izoulet,  365.  393,  415,  496,  642, 
550. 

James,  William,  72,  99ff. 
Janet,  19,  53. 
Jaurès,  246,  281. 


576 


INDEX 


[The  numbers  refer  to  the  pages.] 


Jellinek,  239,  240,  241,  244,  247, 
253.  272,  288,  300,  308,  313ff., 
324,  325,  326ff.,  333,  336,  337, 
365. 

Jevons,  471. 

Jhering,  xxxii,  xlix,  209,  210,  245, 
251,  253,  263,  288,  308ff., 
317,  319,  324,  325,  333,  3.36, 
337,  357,  358,  360,  364,  366, 
367,  374,  379,  382,  397,  402, 
411,  416,  420,  431,  441,  447, 
481,  482.  497,  502,  504,  553, 
554,  563,  565,  568. 

Joinfroy,  60. 

Jousse,  140. 

Tuglar,  632. 

juille,  453. 

Justice,  371,  405,  411,  480ff. 

Kant,  xxxii,  xxxviii,  2,  10,  13,  22, 
26,  52,  59,  69,  80,  103,  151, 
163,  193,  198.  199,  210,  214. 
225,  251,  381,  482. 

Kidd,  384. 

Knitschky,  316. 

Korkunov,  358,  364,  365,  373,  374. 
379.  384,  398. 

Krause,  2,  184. 

Krieken,  van,  239. 

Laband,  253,  310,  315ff..  322.  323, 

325. 
Labbé,  93,  108,  111. 
Laborde,  557. 
Laboulaye,  567. 
Lactantius,  54. 
Lafitte,  301. 
Lalande,  78,  79,  88,  101. 
Lambert,  421.445.  516. 
Lamennais,  2. 
Landry,  379,  390,  482. 
Languet,  135. 
Larnaude,  464.  549. 
Lasalle,  565. 
Lazarus,  17. 
Leguay,  xlvi. 

Leibnitz,  xxx,  190,  362,  502. 
Leo  XIII,  136. 
Lequier,  155. 

Leroy,  71,  72,  103,  394,  454,  466. 
Levasseur,  534. 


Levi,   Alessandro,   355.   360,   375' 

481,  482. 
Levy,  Emmanuel,  411,  424,  439. 

524. 
Lévy-Brulil,  xlvi,  66,  376ff. 
Lévy-Ullmann,  483,  566. 
Liberty,  .37ff..  61,  72,  151fî.,  166ff., 

171ff..  ISOff.,  204ff..  212.  213. 

298,  371,  372,  384,  504,  507ff. 
Lilienfeld,  239. 
Locke,  2,  53,  54,  266. 
Logic,  in  the  law.  li,  118,  123,   124, 

144,  377ff.,  410,  569ff. 
Loisel,  476. 
Loisy,  73. 
Lombroso,  62. 

Maine,  256. 

Mailleux,  445,  447,  465. 

IMaistre,  do,  2,  8,  23. 

Malapert,  89,  92,  93. 

Mamiani,  62. 

Mancini,  62. 

Mariana.  135. 

Marion,  84.  269. 

Martin,  123. 

Marx,  245,  246. 

Mataja,  471.  529.  557. 

Mazarella.  440. 

Merkel.  li. 

Merlin,  113. 

Mestre,  132. 

Meynial,  123,  411.  425,  465. 

Michel,  85,  247.  250.  482.  566. 

Michelet,  21. 

Michoud.  240,  241. 

Mill,   Ixv,   15,   17,   212,   234,  355. 

394,  409,  419.  447.  481.  493. 

494. 
Mirabeau,  52,  164. 
Molière.  35. 
Monnier,  xliv. 
Montesquieu,    47,    151,    397.    381, 

420,  469,  507,  570. 
Montré,  419. 
Moral  Interest,  553ff. 
Morality,  78ff..  84,  287,  376ff..  395; 

relationof  tolaw,  305ff.,   333, 

364ff..  376ff.,  413.  414. 
Morelli,  421. 
Morin.  424. 


INDEX 


577 


[The  numbers  refer  to  the  pages.] 


Natural  Law,  74,  106,  162,  163ff., 
248ff.,  328,  370,  376;  with 
relative  content,  106ff.,  373, 
400.     See  Ideal  Law. 

Naville,  378,  379. 

Neybour,  482. 

Nietzsche,  Ixv,  265,  399. 

Non-Perpetuity,  454ff.,  462ff. 

Non-Rctroactivity,  362,  454ff. 

Novicow,  239. 

Occam.  545. 

Opposition,  theory  of,  391ff.,429ff., 

564ff. 
Oiidot,  106,381,481,482. 

Pactum  Subjectionis,  135. 

Palante,  471,  475. 

Papini,  102. 

Parodi,  80,  99,  101,  105,  505,  510. 

Pascal,  Ixv,  31,  52,  103,  166,  205, 

208,  357,  361,  395,  405. 
Passy,  534. 
Pasteur,  83. 
Paulhan,  413,  568. 
Payot,  87. 
Penjon,  542. 
Perpetuity,  454fif. 
Picard,   355,   357,   358,   364,   366, 

376,  380,  386,  391,  393,  394, 

413,  431,  465,  491,  566,  568. 
Pierce,  99. 
Pillet,  381. 
Pius  IX,  136. 
Planiol,   249,  349,  372,  458,  462, 

464,  551. 
Plato,  xxxviii,  199,  213,  227,  307, 

365. 
Poincaré,  386. 
Poletti,  62. 
"Policy  of  Power,"  245,  251,  303, 

311,  402. 
Polybius,  11. 
Pothier,  249,  571. 
Pound,  1. 

Pragmatism,  99ff.,  145. 
Preuss,  239,  333ff. 
Prezzolini,  102. 
Proudhon,    Pierre   Joseph,    3,    58, 

59,  60,  151,  280. 
Proudhon,  J.  B.  V.,  113. 


Publicity,  433,  462. 
Puchta,  298. 
Puglia.  62. 

Quesnay,  54. 

Raison  d'État,  396,  399. 

Rauh,  66,  78,  80,  97,  288,  381. 

Regnard,  62. 

Rehm,  241. 

Reid,  154. 

Renan,  19,  266,  380,  383,  385,  399, 

413,  564. 
Renard,  95,  374. 
Renouvier,  xxxii,  61,  85,  155. 
Responsibility,  521ff. 
Responsibility-Justice,  488ff. 
Retroactivity,  362,  454fif. 
Revolt,  right  of,  135. 
Richard,  67,  131,  375. 
Ripert,  93,  518,  523. 
Rist,  83,  84. 
Rivarol,  30. 
Riviere,  de  la,  54. 
Roblot,  265. 
Roguin,  365,  380,  566. 
Rolin,  358. 
Rosin,  315. 
Rosny,  449. 
Rossi,  62. 
Rothe,  370. 
Rousseau,  2,  22,  47,  51,  52,  55.  56, 

58,   128,   163,  238,  266,   272. 

358. 
Royer-Collard,  60,  152,  400. 
Rumelin,  481. 

Sabatier,  76. 

Saint-Pierre,  40. 

Saint-Simon,  3,  56fï. 

Saleilles,   97,    111,    119,    123,   370, 

372,  374,  411,  425,  464,  549. 
Saripolos,  247. 
Sarwey,  313,  324. 
Savigny,  298,  370,  372,  373. 
Schatz,  355,  421,  422,  507,  567. 
Schelling,  xxxii,  199,  230. 
Schiller,  the  poet,  2. 
Schiller,  F.  C.  S.,  99. 
Schopenhauer,  Ixiv,  31,   103,   193, 

199,  200,  234. 


578 


INDEX 


[The  numbers  refer  to  the  pages.] 


Security.  418ff.,  446ff.,  503ff..  660; 

dynamic.  427ff..  446ff..    504; 

static.  428ff.,  446ff..  503,  517, 

560,  561. 
Seillière.  xxxiii. 
Seydel.  247.  313.  324. 
Siciliani.  62. 

Social  Contract.  248.  272;    quasi- 
contract,  921Ï..  273,  626. 
Socrates,  201. 
Solidarism.  76.   82ff..   126ff..   371. 

525ff.     See  Solidarity. 
Solidarity.  82.  258ff..  288ff..  328, 

341.386,502.    See  Solidarism . 
Soniewski.  424. 
Sophocles.  365. 
Sorel.  96,  560,  572. 
Spencer,  Ixv,  5,  17,  42.  65,  66,  68, 

69.    199.   212,    213,   214,   215. 

225.  234.  275.  276,  320,  410, 

422.  470.  482. 
Spinoza,  2.  193. 
Spiritualistic  school,   60ff.,    152ff.. 

163ff.,  lS3ff.,  288. 
St.  Ambrose.  64. 
St.  Augustine.  54. 
St.  Paul.  82. 

St.  Thomas,  see  Aquinas. 
Staël,  de,  15. 

Stammler.  xliii,  106ff.,  371.  482. 
State,  personality  of,   126,  237fï., 

254.  335ff..    self-limitation  of. 

127,  247.  312flf..  330ff.,  340fï. 
Stoicism,  47fif.,  280. 
Strabo,  11. 
Strauss,  35,  234. 
Sully-Prudhomme.  481. 
Sybel,  de.  IS. 

Taine,  3.  12,  17.  104.  171,  184,  370, 


Tanon,  xlix.  358,  365.  371,  372, 
376,  392,  447,  483,  640,  541, 
565. 

Tarde,  xl.  xlvi.  xlix,  li.  93,  239.  368, 
379,  384.  391ff.,  400.  408.  409, 
412,  415,  422.  429.  430,  447, 
4.55,  493,  496,  636,  564. 

Technic,  theory  of,  378fï..  409ff., 
565.  571.  572. 

Tesseire,  93.  518.  523,  629. 

Tissier.  121.  122.  123. 

Tocqueville.  de.  37. 

Touiller.  113. 

Tourtoulon.  de,  382,  388,  445,  480. 
483,  529. 

Trendelenburg,  2. 

Turgot.  31,  53.  65. 

Tyrannicide.  137. 

Utilitarianism,   29,   65,    129,   218 

494. 
Ulpian,  Ixvi. 
Ulrici.  2. 

Vadalà-Papale.  62. 
Valabrègue,  424. 
Vareilles-Sommiêres,  383,  458. 
Voltaire.  34,  35. 

Wahl.  475. 

Wautrain-Cavagnari,  62. 
Winiarski,  471. 
Worms,  239. 
Wundt,  288. 

Young.  40. 

Ziegler,  287. 
Zitelmann,  316. 
Znrn,  313,  324. 


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